Ali, R (On the Application Of) v The Secretary of State for the Home Department

The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 requires immigration functions to be performed having regard to children’s welfare, including where the applicant is a parent and the children’s residence is secure through British citizenship. The duty does not ordinarily require indefinite leave to remain. A staged route to settlement is lawful. Five years’ leave may discharge the substance of the duty where the children can remain with both parents and no specific evidence identifies a detrimental impact requiring longer leave. A decision-maker need not refer expressly to section 55 if the substance of the duty has been addressed. A supplementary decision may be a free-standing reconsideration rather than an impermissible post facto justification.

The claimant, a Somali national married to a British citizen and the mother of six British citizen children, challenged the grant of five years’ leave to remain. She argued that the Secretary of State had failed to comply with section 55 of the Borders, Citizenship and Immigration Act 2009 and should have granted indefinite leave to remain.

After permission was granted, the Secretary of State issued a supplementary decision expressly considering section 55 and the children’s best interests. The claimant challenged that decision as a post facto justification. The central issues were whether the original decision discharged the statutory duty and, alternatively, whether the supplementary decision was a valid reconsideration.

1. Claim dismissed. The substance of the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 was discharged by granting five years’ leave under the staged settlement policy.
2. The duty applied even though the claimant had not expressly raised section 55 before the original decision. It was broad enough to include children whose residence was not in question because they were British citizens, where the applicant was their parent.
3. The staged route to settlement was lawful. The grant of five years’ leave enabled the children to remain in the United Kingdom with both parents. In the absence of specific evidence of disadvantage or other factors requiring consideration of longer leave, that was sufficient to discharge the duty. General assertions of anxiety, uncertainty or unfairness were insufficient.
4. The court adopted the principles stated in The Queen (on the application of Norjabee Alladin) v Secretary of State for the Home Department and The Queen (on the application of Chander Shekhar Wadhwa and others) v Secretary of State for the Home Department [2014] EWCA Civ 1334: express reference to the statute is unnecessary where the substance of the duty is discharged; staged settlement is permissible; and an applicant seeking longer leave must identify more than the fact of being a child.
5. Alternatively, the supplementary decision was a free-standing reconsideration. The Secretary of State had sought further information, considered the material available, and expressly addressed section 55. It was not a pretence or a decision improperly coloured by the judicial review proceedings. The proceedings were therefore academic in any event. Relief was refused. Ancillary issues, including costs, were left for a further hearing or agreement.

Not an appeal. The judgment records the procedural history of the judicial review claim, including permission granted on the section 55 ground and the later supplementary decision.