NS & Ors, R (On the Application Of) v Secretary of State for Home Department

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires a child’s best interests to be treated as a primary consideration, but not as the paramount or conclusive consideration. They may yield to sufficiently weighty countervailing policy considerations.

A policy granting limited leave rather than indefinite leave may lawfully require a probationary period. A policy imposing no recourse to public funds as the default for certain migrants is also lawful where it requires access to public funds to be granted in cases of destitution or particularly compelling child-welfare reasons. The threshold need not be met merely because denial of benefits may adversely affect a child.

The first claimant, a Thai national and sole carer of four British children, challenged the Secretary of State’s decision to grant her limited leave to remain for 30 months rather than indefinite leave, and to impose a no-recourse-to-public-funds condition.

The Secretary of State reconsidered the decision after the claim was issued and maintained both outcomes. The issues were whether the applicable policy and individual decision complied with section 55 of the Borders, Citizenship and Immigration Act 2009, and whether the no-recourse policy was otherwise unlawful.

1. The claim was dismissed. The court considered the further decision of 7 March 2014, rather than scrutinising the earlier decision of 30 May 2013.

2. The Secretary of State had a discretion under section 3(1)(b) of the Immigration Act 1971 to grant limited or indefinite leave outside the Immigration Rules. A probationary period before settlement was a common and ordinarily lawful feature of the Rules. The Secretary of State could depart from that policy where the particular circumstances made indefinite leave appropriate.

3. The Children’s Best Interest Guidance lawfully required caseworkers to treat the best interests of an affected child as a primary consideration when deciding whether to grant longer leave or indefinite leave. Section 55 did not require the outcome to conform with the child’s best interests in every case. The interests could be outweighed by countervailing considerations of sufficient force.

4. The Guidance’s initial requirement that an applicant raise the child-welfare issue was not unlawful. Once reliable information showed that the issue arose, the decision-maker had to treat the child’s best interests as a primary consideration and act proactively, where necessary, to obtain further information.

5. The no-recourse-to-public-funds policy pursued legitimate objectives, including reducing the burden on taxpayers, promoting integration and maintaining coherence between immigration routes. It did not elevate those objectives above the welfare of children. The policy lawfully required the condition to be removed where the applicant was destitute or where particularly compelling reasons relating to a child’s welfare existed. In that assessment, the caseworker had to consider the specific effects of lack of access to benefits.

6. The individual challenge failed because the claimant had provided insufficient evidence of financial circumstances or adverse effects on her children. The court did not determine whether further evidence might later require removal of the condition. The claims were dismissed.