Family Law Titles
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(Queen's Bench Division (Administrative Court); Charles J; 18 November 2008)
The mother and the eldest child had arrived from Jamaica on 6-month visas; their applications to extend their stay were refused. However, nothing was done to remove the mother and child, and the mother went on to have three more children with a British father. After being in England for 7 years the mother applied for indefinite leave to remain on the basis of the Secretary of State's policy respecting children who had been in the UK illegally for more than 7 years. The Home Office had not yet made a decision. After the mother separated from the British father, she sought support from the local authority. It was accepted that the children were children in need, but the authority decided not to make payments under Children Act 1989, s 17 and potentially s 20, but instead to fund the return of the mother and all the children to Jamaica. The mother sought judicial review of that decision.
Granting judicial review, the local authority had erred in failing to take account of the reasons underlying the Secretary of State's policy concerning children in the UK illegally for more than 7 years; it was not bound by that policy, but it was required to have regard to the reasons underlying the policy. Absent such an approach, there would be a lack of consistency in decision-making by public authorities as to the relevant central point, namely had there been a breach of Convention rights in respect of a family with a child or children who had been in the UK for 7 years. Careful consideration should be given in such cases to joining the Home Office in an attempt to ascertain the Secretary of State's views in an individual case. That would reduce the risk of relevant central and public authority decision-makers reaching different conclusions and could bring to an end expenditure of much needed public money by local authorities in cases of expenditure in respect of persons in the jurisdiction unlawfully who would not be given leave to remain.
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