Home Office guidance on discretionary indefinite leave for children held to be unlawful

The Home Secretary has made a useful concession to the High Court, confirming that she has a discretion to grant indefinite leave to remain outside the immigration rules without a fee being paid. The child claimant in the case successfully challenged the rejection of his application for indefinite leave to remain for non payment of the application fee.

The High Court also held that the Home Office’s guidance on discretionary grants of indefinite leave to remain as set out in “Family Policy: Family life (as a partner or parent) and exceptional circumstances” is unlawful for its failure to properly comply with the section 55 duty to consider a child’s best interests as a primary consideration. The case is R (CPH) v Secretary of State for the Home Department [2025] EWHC 848 (Admin).

Background

In August 2021 the claimant and his parents made a fee waiver application in respect of an application for limited leave to remain by the claimant’s mother, with the claimant and his father as her dependents. The fee waiver was granted and the application submitted.

On 20 June 2022 Appendix Private Life came into effect and this provided for a child born in the UK and who has lived continuously in the UK for seven years to be granted indefinite leave to remain. The claimant met these requirements and so his solicitors wrote to the Home Office in October 2022 and asked that his outstanding application be varied to one for indefinite leave to remain.

It was stated that the claimant could not pay the relevant fee of £2,404. The claimant’s lawyers submitted that either the Home Secretary had a discretion to waive the fee or the requirement to pay the fee was a breach of the section 55 duty. It was argued that if the Home Secretary would not waive the procedural requirement to pay the fee under Appendix Private Life, then discretion should be exercised to make a grant of indefinite leave to remain outside the rules.

On 3 November 2022 the claimant and his parents were all granted limited leave to remain in the UK. No mention was made of the request for indefinite leave to remain and so a pre action letter was sent, following which the Home Secretary agreed to reconsider the application. On 8 March 2023 the decision to grant limited leave only was maintained. The letter did not refer to the section 55 duty or the child’s best interests.

A further pre action letter was sent and in the absence of a response from the Home Secretary a judicial review was filed on 8 June 2023. The Home Secretary agreed to reconsider the decision again. The Home Secretary’s position was explained as:

the requirement to pay a fee for an application for ILR under Appendix PL was mandatory, and that she was unable to waive it. However, they also explained that the Secretary of State had a discretion to grant ILR outside the Immigration Rules, without a fee being paid, and that the Secretary of State intended to consider whether to grant ILR to the Claimant on this basis. It was said that, in doing so, the Secretary of State would consider the Claimant’s rights under Article 8 and the s 55 duty. In due course, a consent order, which recorded that the Secretary of State would reconsider the decision of 8 March 2023, was agreed between the parties. The order was approved by the Court on 5 November 2023, and the Claimant’s claim for judicial review was withdrawn.

On 31 January 2024 the application under Appendix Private Life was rejected as invalid as the fee had not been paid nor had the relevant application form been used. The Home Secretary also considered whether to grant discretionary indefinite leave outside the rules and decided not to do so, with reference to the guidance “Family Policy: Family life (as a partner or parent) and exceptional circumstances” which contains provision for a grant of indefinite leave to remain outside the rules.

The judicial review

The claimant sought judicial review of the decision as well as bringing a broader policy challenge. It was argued that the decision was unlawful because the Home Secretary had failed to consider the section 55 duty to safeguard and promote the welfare of children. It was also submitted that the lack of provision of a fee waiver process for these applications also breached the section 55 duty, breached article 8 and 14 of the European Convention on Human Rights and that it was irrational.    

The parties agreed that there is no provision in the fees Regulations and Order for an exception to the requirement to pay a fee for an indefinite leave to remain application made under Appendix Private Life. The court commented that on the face of it this could also apply to an application for indefinite leave to remain outside the rules. However, it was submitted on behalf of the Home Secretary that the fee attaches to the making of the application, and that a grant of indefinite leave to remain can be made whether or not a fee has been paid.

The court accepted the claimant’s argument that:

in many (if not most) cases, a grant of ILR is more likely to serve the best interests of a child than a grant of limited leave to remain, although whether, and the extent to which, a grant of ILR would be in the best interests of a particular child is likely to depend on the specific circumstances of the individual case.

The court dismissed the arguments that the requirement to pay a fee under Appendix Private Life is a breach of section 55. The court then moved on to consider the requirements for a grant of indefinite leave to remain under the Family Policy guidance.

Here, the claimant argued that the guidance was unlawful because decision makers are told to apply the restrictive “particularly exceptional or compelling reasons” test when deciding whether to grant indefinite leave outside the rules. The claimant relied on R (A) v Secretary of State for the Home Department [2021] UKSC 37 where it was held that a policy on how a public body will normally exercise a discretion is unlawful “if the policy purports positively to authorise or approve unlawful conduct”.

The court agreed, saying that:

the “particularly exceptional or compelling reasons” criterion involves the application of a more stringent and narrower approach than that required by the s 55 duty. In effect, it skews the balancing exercise required by that duty; it is only if the best interests of the child (together with any other relevant factors) amount to “particularly exceptional or compelling reasons” that they can tip the balance in favour of a grant of ILR.

For this reason, the court concluded that the discretion section in the Family Policy guidance is unlawful because it does not properly comply with the section 55 duty.

On the decision to refuse the claimant indefinite leave to remain, the court noted that the Home Secretary had accepted that it would be in the claimant’s best interests to grant him indefinite leave to remain, however there is no evidence that was taken into account as a primary consideration and there was “no explanation at all” of how the decision maker had balanced the claimant’s best interests against the importance of charging a fee. The refusal was quashed and the Home Secretary will need to make a new decision on a grant of indefinite leave outside the rules.

Conclusion

There are still a lot of unknowns about what a lawful discretionary indefinite leave to remain policy for children would look like and how close it may be to the (far easier to meet) requirements of Appendix Private Life. However this is a significant decision that should encourage more applications on behalf of children to try to access the indefinite leave to remain that they have previously been blocked from on costs grounds only. The Home Secretary has sought permission to appeal the decision, thereby seeking to ensure that poorer children are excluded from indefinite leave to remain.