O, R (on the application of) v Secretary of State for the Home Department

Permission to bring a claim based on human rights will not be granted where the claimant cannot satisfy the applicable immigration rules and removal would not breach the child’s human rights. A child’s potentially better prospects in the United Kingdom do not, without more, establish a right to remain. Where a child claimant lacks capacity, the court must also ensure that a suitable litigation friend has been appointed. A parent with a conflicting personal interest is not an appropriate litigation friend.

The claimant was a six-year-old Nigerian child who had entered the United Kingdom with her mother as a visitor and overstayed. She sought indefinite leave to remain as the child of parents settled in the United Kingdom. The Secretary of State rejected the claim because the immigration rules were not satisfied, including the requirement that the father have sole responsibility for her upbringing.

Permission was refused on paper by Irwin J. On renewal, the Administrative Court considered whether removal to Nigeria would breach the child’s human rights and whether the proceedings could properly continue without a litigation friend.

1. Permission refused. The claimant could not qualify under the immigration rules because the evidence showed that her father did not have sole responsibility for her upbringing. The child was being cared for by another relative.
2. Returning the child to her mother in Nigeria would not breach her human rights. The fact that she might have better prospects in the United Kingdom was insufficient. She was young, had been in the United Kingdom for about two years, and could begin her education and formal upbringing in Nigeria.
3. The proceedings were also procedurally defective. A six-year-old claimant required a litigation friend. The father was unsuitable because he had a personal interest in pursuing the claim. The solicitors had failed in their duty to the court by not seeking the appointment of an appropriate litigation friend.
4. Because the claimant and her representatives had not attended, the court made an order refusing permission which would take effect only after service of the order and transcript. The solicitors were given 14 days to notify the court that the claim was to be pursued and, if so, to apply for appointment of a litigation friend.
5. The judge indicated that he was minded to order the solicitors personally to pay the Secretary of State’s costs under Rule 44.14, because of the procedural breach and the pursuit of a manifestly hopeless claim. No final costs order was made at that stage.

Permission was initially refused on paper by Irwin J in November 2007. On renewal, Mr Justice Collins refused permission, subject to the order taking effect after service and the opportunity to apply for appointment of a litigation friend.