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Family Law

The leading authority on all aspects of family law

10 MAY 2013

Home Office Policy Concerning Children Unlawful

The case SM and TM and JD and Others v SSHD [2013] EWCA 1144 (Admin) has found that the Home Office policy on discretionary leave to remain is unlawful. The case concerned foreign national children who had been granted discretionary leave to remain, but who were then refused indefinite leave to remain when this was requested.

The High Court found that the Home Office policy on discretionary leave to remain 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, essentially leaving the child in limbo.

The High Court applied the Supreme Court's decisions in ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 1 FLR 2170 and HH and Others [2012] UKSC 24, both of which clearly state that the children's best interests must be a primary consideration in all decision-making about them or affecting them.

Coram Children's Legal Centre (CCLC) acted as interveners in this case and were represented pro bono by Manjit Gill QC and Joanne Rothwell of No. 5 Chambers.

Sophie Freeman, instructing solicitor at Coram Children's Legal Centre, commented that, ‘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.'

The judgment also requires that the Secretary of State amend the relevant discretionary leave policy to ensure it is lawful. Coram Children's Legal Centre has also requested that in future, Home Office caseworkers treat the best interests of the child as a primary consideration in all their decisions affecting children.

For more information regarding Coram Children's Legal Centre (CCLC), please visit www.childrenslegalcentre.com.

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