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

A policy governing grants of leave outside the Immigration Rules is unlawful where it requires decision-makers to apply a threshold of particularly exceptional or compelling reasons without requiring them to treat a child’s best interests as a primary consideration. The section 55 duty requires an evaluative balancing exercise. The child’s best interests must be identified, assessed and weighed against countervailing considerations; the duty is procedural and does not dictate the outcome. A statutory fee requirement and rules reflecting that requirement were not themselves unlawful where the Secretary of State retained a broad discretion to grant leave outside the Rules.

An eight-year-old child born and continuously resident in the United Kingdom sought indefinite leave to remain under Appendix Private Life. He appeared to satisfy the substantive eligibility requirements but could not pay the application fee. The Secretary of State treated the application as invalid and refused to grant indefinite leave outside the Immigration Rules, instead maintaining limited leave to remain.

The claimant challenged the Fees Regulations, Appendix Private Life, the Family Policy and the individual decision under section 55 of the Borders, Citizenship and Immigration Act 2009, Articles 8 and 14 of the Convention, and irrationality. The central issues were whether the framework permitted proper consideration of the child’s best interests and whether the Secretary of State had complied with that duty in the individual decision.

1. Framework. The Fees Order and Fees Regulations required the prescribed fee for an application under Appendix Private Life and did not confer a general power to waive it. The challenge to those provisions failed. Appendix Private Life was not unlawful merely because it did not itself provide for case-specific consideration of best interests. The Secretary of State’s discretion to grant leave outside the Rules formed part of the relevant arrangements for section 55 purposes.
2. MM (Lebanon) and ST. Those decisions were distinguishable. They concerned provisions which stated, or purported to establish, that compliance with the Rules itself secured compliance with section 55. That feature was absent here.
3. A test. The court assumed, without deciding, that the test in R (A) could apply to the Immigration Rules. Appendix Private Life did not positively authorise unlawful conduct because its fee requirement faithfully reflected the lawful statutory scheme. The Family Policy, however, did fall within the test.
4. Family Policy. The discretion guidance instructed decision-makers to grant longer leave or indefinite leave only where the applicant demonstrated particularly exceptional or compelling reasons. Applied in a child’s case, that was narrower and more stringent than the section 55 duty. It skewed the required balancing exercise by requiring the child’s best interests to amount to particularly exceptional or compelling reasons. The guidance did not cure the defect by omitting any reference to section 55 or best interests. It was therefore unlawful to the extent identified.
5. Individual decision. The Secretary of State did identify the child’s family unity, access to public services, lack of permanence and precarious immigration status. But the decision did not explain how those best interests were weighed as a primary consideration against the importance attributed to charging a fee. The section 55 duty was therefore not discharged. The duty required a proper process, not a particular outcome.
6. The Article 8, Article 14 and irrationality challenges failed. A refusal of indefinite leave generally did not interfere with Article 8 rights. Children otherwise eligible for indefinite leave under Appendix Private Life were not in a relevantly different position from comparable adults for Article 14 purposes.
7. The court declared the discretion guidance unlawful, declared the decision unlawful, quashed the decision and required redetermination of the application for indefinite leave outside the Rules. The Secretary of State was ordered to pay 85% of the claimant’s reasonable costs.

First-instance judicial review proceedings. Permission was granted by Bright J on 27 September 2024. The Administrative Court granted declarations, quashed the decision and required redetermination.