SB & Anor, R (on the application of) v The Secretary of State for the Home Department

The transitional provisions in a discretionary-leave policy must be interpreted objectively, by their language and context. A significant change in an applicant’s circumstances is not confined to a change making removal lawful under article 8.

A no-recourse-to-public-funds condition on limited leave is presumptively lawful where the published policy makes access exceptional. The decision-maker must consider whether the applicant is destitute or whether particularly compelling child-welfare reasons require access. The child’s best interests are a primary consideration under Borders, Citizenship and Immigration Act 2009, but they do not automatically displace the immigration and fiscal policy. A claimant must provide evidence showing that the condition affects welfare or article 8 rights.

The first applicant, who had previously received discretionary leave as a dependent of her father, and her young child sought judicial review of decisions granting them 30 months’ limited leave under the Immigration Rules subject to a no-recourse-to-public-funds condition.

They challenged the refusal of further discretionary leave under the transitional policy, the imposition and later retention of the condition, compliance with section 55, and compatibility with article 8. The respondent’s later decision reconsidered the request to remove the condition and concluded that the applicants had not shown destitution or a welfare basis for an exception.

The central issue was whether the respondent had lawfully applied the transitional discretionary-leave policy and the published safeguards governing access to public funds.

1. Claim dismissed. The respondent was entitled to refuse a further grant of discretionary leave and to grant limited leave under the Immigration Rules with a no-recourse-to-public-funds condition.

2. The transitional policy required consideration of whether the circumstances prevailing at the original grant continued. Read objectively and in its policy context, a significant change was not limited to one which meant that removal would no longer breach article 8. The applicant’s employment, separate tenancy, independent household and new family unit rationally entitled the respondent to find a significant change and to refuse further discretionary leave.

3. The respondent had a discretion under the Immigration Rules to impose or remove the condition. The relevant guidance created a presumption against access to public funds, displaced where the applicant showed destitution or particularly compelling reasons relating to a child’s welfare. On the material supplied with the 2013 application, it was rational, and effectively inevitable, to impose the condition. The 2014 reconsideration lawfully found that destitution had not been established and substantively considered child welfare.

4. Section 55 made the child’s welfare a primary consideration, not a determinative one. Although the 2013 letter did not show an express section 55 assessment, no evidence identified a need for longer leave or showed that the condition would adversely affect the child’s welfare. The fresh and detailed 2014 assessment discharged the duty. The facility to seek removal of the condition in exceptional circumstances was an important safeguard.

5. No interference with protected article 8 rights was established: the family remained together, the alleged inadequate income was speculative, and the applicant could work and seek a change of conditions. If there were interference, it would be justified and proportionate in light of the public policy, permission to work and the available safeguards.

not stated in the judgment.