Dong, R (on the Application of) v Secretary of State for the Home Department

When making an immigration decision affecting a child, the Secretary of State must assess and consider the child’s best interests as a primary consideration. Those interests are important but not determinative, and the duty does not require indefinite leave to remain in every case. A decision is unlawful where the documents show no assessment of the child’s best interests. In deciding whether to grant judicial review, the relevant question is whether lawful consideration might have produced a different decision, not whether the court considers that a different decision was likely. Where leave has already been granted, the court may quash only the decision on its duration and require reconsideration while preserving the existing leave.

The claimant, a Vietnamese national, challenged the Secretary of State’s decision to grant her and her children 30 months’ discretionary leave rather than indefinite leave to remain. The case concerned the Secretary of State’s treatment of the children’s circumstances, particularly one child’s learning difficulties, under section 55 of the Borders Citizenship and Immigration Act 2009. The central issue was whether the decision-making process lawfully treated the children’s best interests as a primary consideration and, if not, what remedy was appropriate.

1. The claim for judicial review succeeded. Section 55 of the Borders Citizenship and Immigration Act 2009 required the Secretary of State to treat the best interests of both children as a primary consideration in deciding the duration of leave.
2. The material before the Secretary of State included substantial information about the elder child’s learning difficulties. Nevertheless, the decision letters contained no identifiable assessment of what his best interests were. The later letter defending the decision did not cure that defect.
3. The statement that indefinite leave to remain was not required in every case involving a child was correct. It did not remove the continuing duty to assess and consider the child’s best interests before deciding the appropriate duration of leave.
4. The appropriate remedy depended on whether lawful consideration might have resulted in a different decision. It was unnecessary to show that a different decision was likely. Given the material concerning the child, that possibility had been established.
5. The decision refusing to depart from the normal 30-month period was quashed. The grant of at least 30 months’ discretionary leave was preserved. The Secretary of State was directed to reconsider the appropriate duration of leave, taking the best interests of both children into account as a primary, though not determinative, consideration. The claimant could submit further material within 28 days. Costs were awarded to the claimant, subject to detailed assessment. Permission to appeal was refused.

This was a first-instance judicial review. Permission to appeal was refused.