Home Office in breach of duty towards migrant children

The Home Office has been found by the High Court to have breached its duty under s.55 of the Borders, Citizenship and Immigration Act 2009 to promote the best interests of children – on this occasion when considering applications for indefinite leave to remain (ILR or permanent residence) by children whose parents cannot afford to pay the usual application fee. The judgment represents a significant step towards opening up the opportunities for ILR to be granted even where fees have been waived or not paid.

In R (CPH) v SSHD [2025] EWHC 848 (Admin), the nine-year-old claimant applied for ILR on the basis of Immigration Rules introduced by the Home Secretary in 2022, aimed at supporting young children, who were born in the UK but were not British at birth, on what the Home Office refers to as their ‘journey’ to citizenship – and therefore on their path to becoming fully integrated members of UK society.  The relevant criteria in para 13 of Appendix PL to the Rules are that the child must have lived continuously in the UK for at least seven years since birth and that it is not ‘reasonable’ to expect them to leave the UK.

Had his family been able to pay the substantial fee (£2,404) for his application, CPH would have met those criteria and would have been granted ILR.  But his parents could not afford the fee, and (in contrast to the position with applications for limited leave to remain) there is no provision in the relevant fees regulations for a fee waiver to be granted in respect of an ILR application in these circumstances.

Despite that, however, for what appears to be the first time in open court, the Home Office conceded that it did have to look at an application for ILR such as CPH’s, even without a fee; but it took the position that, because the fee had not been paid, it did not have to assess the case against the same criteria in the Immigration Rules as would have applied if CPH had paid the fee.

Instead a different, and stricter, set of criteria were applied to CPH which he could not meet: specifically, the Home Office applied sections of its Family Policy: Family life (as a partner or parent) and exceptional circumstances.  That allows for a grant of ILR where there are ‘particularly exceptional or compelling reasons’ for doing so; an example given is where ‘the precariousness of limited leave would create such serious distress as to have a disproportionately detrimental effect on the person’s health or welfare that it would prevent recovery or development’. 

That, clearly, is a test more stringent than that in the Rules and also more stringent than whether a grant of ILR is in the best interests of the child.  The Home Office conceded, as it necessarily had to, that the best interests of any child affected did have to be taken into account, but its position was that the policy did allow for this.

CPH could not show he met that threshold, and in a decision which applied that test, the Home Office refused his application for ILR.  CPH sought judicial review.

Jonathan Moffett KC, sitting as a Deputy High Court Judge, accepted CPH’s arguments that the test in the Family Policy ‘involves the application of a more stringent and narrower approach than that required by the s.55 duty’ and ‘skews the balancing exercise required by that duty’. He held that the Family Policy ‘purports positively to authorise and approve the taking of decisions in a manner which does not comply with the s.55 duty’.  To that extent, it is unlawful.

Moreover in the individual decision on CPH’s case, the Judge held that the Home Office had failed to take CPH’s best interests ‘into account as a primary consideration’ and had given ‘no explanation at all of how the Secretary of State balanced [his] best interests against any other factors’.  The main factor the Home Office said it had relied on as a reason not to grant ILR – in particular that paying a fee was necessary because, in the Home Office’s words, a grant of ILR is ‘one of the most valuable privileges offered for those seeking to enter or remain in the UK’ – was, the Judge held, ‘something of a double-edged sword’ for the Home Office, because it was equally well a reason why it was in the child’s best interests that ILR should be granted.

Other arguments raised by CPH, including that his rights under Article 8 and/or Article 14 ECHR had been breached, and/or that the Home Office’s policy and decision were irrational, were not accepted; in particular, the Judge held that children in CPH’s position did not require by virtue of Article 14 to be treated differently to adults eligible for ILR (i.e. there was no ‘Thlimmenos discrimination’): the Judge however indicated that, had that issue been decided differently, the Home Office might have found difficulty in justifying the failure to treat children and adults differently.

If this decision is upheld on appeal – and the Home Office has sought permission to appeal – then it would appear that the policy relating to children seeking ILR outside the Rules will have to change so as to make it consistent with the Home Office’s s.55 duty and the importance of taking account of children’s best interests as a primary consideration. 

Either way, the Home Office’s significant concession that, at least in some circumstances, an ILR application does have to be considered even without a fee being paid may open up the possibility of future challenges by different applicants.

Alasdair Mackenzie was instructed by Alexandra Rowe of Birnberg Peirce and Partners.