Kone, R (on the application of) v The Secretary of State for the Home Department

Paragraph 297(i)(f) of the Immigration Rules does not require only one parent to be present in the United Kingdom. A child may qualify for indefinite leave to enter where one parent is present and settled, even though the other parent has limited leave, provided the remaining requirements are met.

The question whether exclusion would be undesirable is normative. The decision-maker must ask whether exclusion, if it occurred, would be undesirable. An existing grant of limited leave does not answer that question or create priority for a shorter form of leave.

The Secretary of State appealed against the Upper Tribunal’s decision of 30 July 2024, which granted judicial review and quashed the refusal of an application for indefinite leave to enter under paragraph 297(i)(f) of the Immigration Rules.

The respondent was a child living in the Ivory Coast. Her father was present and settled in the United Kingdom and her mother had limited leave to remain. The Secretary of State considered that paragraph 297(i)(f) did not apply because both parents were in the United Kingdom, and granted limited rather than indefinite leave. The Upper Tribunal held that the Rule required only one parent to be present and settled and involved a normative assessment of whether exclusion would be undesirable.

The appeal concerned the interpretation of paragraph 297(i)(f), the relevance of limited leave already granted, and the effect of paragraph A277B.

1. Appeal dismissed. The Upper Tribunal correctly quashed the Secretary of State’s refusal of indefinite leave to enter.
2. Paragraph 297(i)(f) is satisfied as to its first condition where one parent is present and settled in the United Kingdom. It imposes no requirement concerning the location or immigration status of the other parent. The word “only” could not properly be read into the Rule.
3. The Immigration Rules must be read according to their natural and ordinary meaning, in context and having regard to their purpose. Part 8 is directed to circumstances in which separated families may be reunited. Paragraphs 297 and 301 address different circumstances and do not establish a priority requiring limited leave to be considered before indefinite leave. Appendix FM likewise does not preclude an application under paragraph 297(i)(f).
4. The serious and compelling considerations requirement asks whether exclusion of the child, if it occurred, would be undesirable. The fact that limited leave had already been granted was not relevant to that question. Relevant background facts could include the child’s living arrangements, care, and bonds with parents in the United Kingdom.
5. The Upper Tribunal erred in treating paragraph A277B as applicable to an application for indefinite leave to enter, since it concerns applications for leave to remain. That error was immaterial because the substantive interpretation of paragraph 297(i)(f) was independently correct. The appeal was dismissed.

• Court of Appeal (Civil Division): [2025] EWCA Civ 1653. Appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Decision dated 30 July 2024 in JR-2023-LON-00270. Judicial review granted and the Secretary of State’s refusal dated 17 October 2023 quashed.