SM & Anor v Secretary of State for the Home Department

When deciding whether to grant leave to remain, and whether leave should be limited or indefinite, the Secretary of State must comply with the duty under Borders, Citizenship and Immigration Act 2009, section 55. The welfare of each child concerned must receive specific consideration and be treated as a primary consideration. It may be outweighed by countervailing considerations, including immigration control, but only after a lawful balancing exercise. A policy is unlawful if its language effectively prevents consideration of immediate indefinite leave for children until a prescribed period of discretionary leave has elapsed. Decision makers must not add an exceptional or compelling-features threshold that displaces the statutory approach.

The claims concerned applications by children for indefinite leave to remain outside the Immigration Rules. The Secretary of State had previously accepted, following Article 8 decisions by the First-tier Tribunal and Upper Tribunal, that the children could not lawfully be removed from the United Kingdom. They were nevertheless granted three years’ discretionary leave under the 27 October 2009 Discretionary Leave policy.

The claimants argued that the policy unlawfully failed to implement section 55 of the Borders, Citizenship and Immigration Act 2009, and that the individual decision maker had failed to apply it. The central issues were whether the policy permitted child-specific consideration when deciding between limited and indefinite leave, and whether that consideration had occurred in practice.

1. Claims allowed. The court quashed the decisions granting limited discretionary leave and ordered the Secretary of State to reconsider each claim with a fresh mind and by properly applying section 55 of the Borders, Citizenship and Immigration Act 2009.
2. Section 3(1)(b) of the Immigration Act 1971 involves separate discretionary decisions: whether to grant leave, whether it should be limited or indefinite, and, if limited, its duration. The section 55 duty applies at each stage.
3. The statutory duty requires consideration of the welfare of the individual children involved. Their best interests must be a primary consideration, although other considerations may outweigh them after a lawful assessment and balancing exercise. The duty applies to the decision whether leave should be limited or indefinite, not merely to removal decisions.
4. The 2009 Discretionary Leave policy was unlawful. Although its introduction referred to section 55, its later provisions stated without qualification that all categories had to complete at least six years of discretionary leave before becoming eligible for settlement. Read as a whole, the policy effectively prevented case-specific consideration of whether a child should receive immediate indefinite leave.
5. Alternatively, the individual decisions were unlawful. The decision maker treated the three-year grant as required by policy, did not demonstrate child-specific consideration at the time of decision, and imposed an unwarranted requirement for exceptional or compelling features. That approach made immigration policy effectively primary and was inconsistent with the approach explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 125.
6. The court expressed no view on the lawfulness of the Secretary of State’s new 2013 policy.

Not stated in the judgment.