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Best interests of the child must be a primary consideration for immigration authorities. High Court declares that this duty is overlooked in the policy on Discretionary Leave to remain as of October 2009 which requires two spells of limited leave for three years before indefinite leave to remain becomes a viable option.

The case of SM and others v SSHD [2013] EWHC 1144 (Admin) was a judicial review of the policy on discretionary leave as of 2009 in relation to the children who had applied for leave to remain outside the immigration rules and were granted limited leave to remain for three years in accordance with the policy in place at that time. The question before the court was whether the duty to consider best interests of the children extended to contemplation of the duration and nature of leave to be granted.

The Secretary of State argued that as long as the child had access to health care and education, there was no material difference between limited leave to remain and indefinite leave to remain.

High court did not accept this argument. Holman J commented that “the effect … of granting only DL is to prolong uncertainty for the children as they develop towards their teenage years and acquire growing awareness of their circumstances, for no welfare-related benefit or purpose…” A major consideration was the effect of the prolonged “limbo” periods when the application for extension of leave is under consideration and when it is difficult to satisfy service providers, such as the NHS, that the child remains entitled to the relevant services.

The judgment only addressed the policy of 2009 which remains in place for those who were granted discretionary leave to remain prior to 9 July 2012.

The policy on discretionary leave to remain outside the rules post July 2012 was published on 6 April 2013. This policy reduces the standard period of discretionary leave to 2.5 years and requires a continuous residence of 10 years before indefinite leave to remain is granted. Holman J deliberately refrained from expressing any views as to the lawfulness of the new policy, yet implicitly invited the Secretary of State to reconsider her positions insofar as it relates to children.

The judgment leaves the door open to challenges of the short periods of leave granted to children under the new rules under Appendix FM or under the new version of the EEA Regulations which, among other scenarios, provide for “derivative right of residence” for siblings of EU citizen children without the right to settle in the UK.

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