Coram Children's Legal Centre welcomes a new High Court judgment upholding the rights of children affected by immigration decisions
Another Home Office policy concerning children found to be unlawful
08 May 2013
Coram Children's Legal Centre welcomes a new High Court judgment upholding the rights of children affected by immigration decisions
Judgment was handed down by the High Court today in the case of SM and TM and JD and Others v SSHD [2013] EWCA 1144 (Admin).
The Home Office policy on Discretionary Leave to Remain, which was in force at the time the decisions in question were made, has been found to be unlawful as it failed to consider the welfare and best interests of the child before deciding the period of time for which leave to remain should be granted. The High Court recognised that successive grants of short periods of leave to remain can leave children in limbo and may, therefore, be contrary to their welfare.
The case concerned foreign national children who had been granted Discretionary Leave to Remain for three years under Article 8 European Convention on Human Rights. The children had asked for Indefinite Leave to Remain but had been refused. The challenge was to the refusal to grant Indefinite Leave to Remain.
Coram Children's Legal Centre (CCLC) acted as interveners in this case. The purpose of CCLC's intervention was not to represent the individual children affected by the decisions, but to assist the Court.
CCLC provided the Court with evidence of the consequences on a child's mental health, welfare and development caused by temporary status, as well as expert opinion on the government's duties to safeguard children under section 55 of the Borders, Citizenship and Immigration Act 2009. In addition, it addressed the UK's obligations under the UN Convention on the Rights of the Child to consider children's best interests in immigration decisions, as well as the public interest in promoting the wellbeing of children as a benefit to society.
In deciding this case, the High Court applied the Supreme Court's judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 and HH and Others [2012] UKSC 24 and 25. These cases make it clear that children's best interests must be a primary consideration in all decision-making about them or affecting them. The High Court in this case confirmed once again that the test for assessing the best interests of children contains no 'exceptionality' requirement.
The effect of this judgment is that the welfare and best interests of children must be considered before determining the length of leave to remain that they are granted.
The judgment requires the Secretary of State for the Home Department to amend the relevant discretionary leave policy to make it lawful. In the light of this judgment, Coram Children's Legal Centre is calling for the Home Office to review all policies to ensure that they are child-rights compliant. Policies must ensure that Home Office caseworkers treat the best interests of the child as a primary consideration in all their decisions affecting children.
Sophie Freeman, instructing solicitor at Coram Children's Legal Centre, said:
"We are delighted that, once again, the Court has confirmed that children's interests must be a primary consideration in all immigration decisions affecting them. This judgment recognises that repeated grants of temporary status can be damaging to the welfare of children and contrary to their best interests. Children need stability and security and this must be factored into all decisions that the Home Office makes affecting them."
ENDS
NOTES TO EDITORS
Coram Children's Legal Centre was generously represented during this case pro bono by Manjit Gill QC and Joanne Rothwell of No. 5 Chambers.
Contact: For further information and interviews please contact Rachel Jasper, Communications and Marketing Manager for Coram, on 020 7520 0427
About Coram Children's Legal Centre
Coram Children's Legal Centre (CCLC) is part of the Coram group of charities, and specialises in law and policy affecting children and young people.
CCLC provides free legal information, advice and representation to children, young people, their families, carers and professionals, as well as international consultancy on child law and children's rights
www.childrenslegalcentre.com