AB & Ors v Secretary of State for the Home Department

A policy governing a no-recourse-to-public-funds condition is unlawful if it authorises decision-makers to apply a test narrower than the statutory duty to treat a child’s best interests as a primary consideration. The duty applies directly when deciding whether to impose or maintain the condition, not merely when deciding whether to grant leave. A policy may be unlawful where, read with the relevant rule and actual decision letters, it sanctions or positively approves unlawful conduct. The decision-maker must first assess the likely effect of the condition on the child and identify the child’s best interests. The impact on particular and essential needs is relevant to proportionality, but cannot be made a threshold condition before the statutory duty is engaged.

The claimants challenged decisions maintaining a no-recourse-to-public-funds condition attached to AB’s limited leave to remain, together with paragraph GEN.1.11A of Appendix FM and the defendant’s Family Policy guidance. The original February 2022 decisions were withdrawn and replaced by decisions dated 16 May 2022.

The claim concerned whether the continued rule wording, the guidance, and the operative decision-making complied with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The central issues were whether the rule and guidance unlawfully narrowed the best-interests duty, and whether the live decision was consequently unlawful.

1. GEN.1.11A. The Divisional Court in ST had declared the existing wording unlawful because paragraph (b), requiring particularly compelling reasons relating to a child’s welfare, imposed a materially narrower test than section 55. The defendant’s continued use of that wording in the live decision showed that the rule was still being treated as valid.
2. Policy test. Applying the approach in R (A), the question was whether the guidance sanctioned, authorised or positively approved unlawful conduct by caseworkers. The guidance stated that GEN.1.11A provided the basis for exceptions and the decision letter reproduced the unlawful test in paragraph (b). Their combined effect was therefore unlawful.
3. Best interests. Where maintaining the condition would not be in the best interests of a relevant child, the child’s interests must be treated as a primary, though not the only, consideration. The guidance unlawfully made that duty conditional on a significant impact on particular and essential needs. The degree of impact remained relevant to proportionality, but was not a threshold for engaging section 55.
4. Decision. The challenge under section 55 succeeded. Family Policy: Family life (as a partner or parent), private life in exceptional circumstances (version 16.0) was declared unlawful to the extent identified. The second decision of 16 May 2022 was quashed. The withdrawn February decisions and the first decision of 16 May 2022 were to be declared unlawful, subject to further submissions. Grounds 2 and 3 were left for submissions in light of the judgment.