The Court of Appeal (CoA) has delivered a landmark ruling, one that effectively dismantles the Home Office’s longstanding “alignment policy”. This judgement serves to clarify that a child’s right to permanent settlement is an independent entitlement which cannot be restricted by the more tenuous immigration status of a second parent.
Facts:
In 2015, Ms Kone, a national of the Ivory Coast who was born in 2002, applied for indefinite leave to enter (ILE) to join her father, who is a British citizen and settled in the UK, and her mother, who has limited leave to remain (LTR) in the UK. Her application was initially dismissed on a technicality in relation to a tuberculosis test certificate, and she appealed to the First-tier Tribunal (FTT). In a decision promulgated on 21 August 2017, the FTT found that there were “persuasive and powerful circumstances, which can rightly be categorised as compelling” for allowing the respondent to join her family in the UK.
In October 2018, she submitted a new application for ILE the UK under paragraph 297 of the Immigration Rules. On 18 June 2019, the application for indefinite leave under paragraph 297 was refused. The respondent was, however, given limited leave to enter (LTE) and remain in the UK until 26 September 2021 pursuant to Appendix FM of the Immigration Rules, having arrived in the UK on 9 July 2019 at the age of sixteen. Ms Kone challenged this via judicial review, leading to a consent order in 2023 wherein the Secretary of State agreed to reconsider the settlement application. However, in October 2023, the Secretary of State maintained the refusal of indefinite leave to remain (ILR). The refusal was specifically based on the interpretation of paragraph 297(i)(f), with the Home Office arguing that the rule only applies when “one parent” is in the UK, implying that if both parents are present, then the child cannot qualify for ILR under that specific sub-paragraph.
The Upper Tribunal (UT) subsequently quashed the Secretary of State’s decision, finding that the Home Office had misinterpreted the law by reading the word “only” into a rule that did not actually contain the conditional conjunction. The UT also ruled that the “seriousness and compelling family considerations” test was a normative assessment of whether exclusion would be undesirable in principle, rather than a factual assessment of whether the child was currently being excluded. The Secretary of State appealed this decision to the CoA.
Decision:
The CoA dismissed the appeal, upholding the UT’s decision that Ms Kone was eligible for ILE. The Court rejected the Secretary of State’s argument that paragraph 297(i)(f) implied that only one parent should be in the UK for the rule to apply. The Court noted that the Rules must be interpreted according to the natural and ordinary meaning of the words used. Because the word “only” was not in the text, the Court refused to read it in. Since Ms Kone had at least “one parent” (her father) who was settled, she met the literal requirement of the rule, regardless of the fact that her mother was also present.
The Home Office contended the Secretary of State’s interpretation that the Immigration Rules are a “coherent scheme” whereby a child’s status must always be aligned with the parent who has the “weakest”, or shortest leave. The Court found this to be a “bald assertion” with no basis in the actual text. The Judges held that, if an applicant meets the specific, more onerous requirements for ILR (such as proving “serious and compelling circumstances”), they are entitled to that status even if they might also qualify for a lesser, limited status under other rules.
A central pillar of the Court’s reasoning was how to interpret the phrase “circumstances which make exclusion of the child undesirable”. The Home Office argued, because they had already given Ms Kone limited LTR, that she was not being excluded, and therefore her exclusion could not be “undesirable”. The Court, however, ruled that this logic was flawed, holding that the test is normative, meaning that the decision-maker must ask: “If this child were excluded, would that result be undesirable?” The fact that a temporary visa was granted in the interim is a separate administrative fact that does not change the answer to the fundamental question of whether the child should be allowed to settle permanently.
Implications:
For years, the Home Office has operated on the unwritten principle that a child’s immigration status must match the parent with the “weakest” status. The courts have, however, ruled that children have an independent right to settlement under paragraph 297. If they meet the criteria, then they can skip the “limited leave” cycle and get ILE immediately, even if one parent is still on a temporary visa.
The Court clarified that “one parent” means “at least one parent”. This means that the rule is now officially available to two-parent households where one parent is settled, and the other has only limited LTR, thus removing a significant barrier for families trying to reunite in the UK.
This establishes a precedent that the best interests of the child must be assessed in the abstract. When asking whether exclusion is “undesirable,” the Home Office must consider the impact of the child being denied a permanent, secure home, rather than just whether they have a temporary permit to be physically present.
