Thu, 09 May 2013
Manjit Gill QC and Joanne Rothwell act as Interveners for Coram Children’s Legal Centre where UKBA’s Discretionary Leave Policy is found to preclude consideration of the welfare of children and is held unlawful.
Manjit Gill QC and Joanne Rothwell acted as Interveners on behalf of Coram Children’s Legal Centre in the case of SM and TM and JD and others v Secretary of State for the Home Department  EWCA 1144 (Admin) handed down on 8th May 2013.
The case concerned foreign national children who had been granted Discretionary Leave for 3 years under Article 8 when the policy DP5/96 was withdrawn. The policy DP5/96 had usually granted such children indefinite leave to remain.
Coram Children’s Legal Centre intervened to provide evidence of the consequences of such temporary status when considered with the guidance issued under S 55 Borders, Citizenship and Immigration Act 2009 “Every Child Matters”and the United Kingdom’s obligations under the UN Convention on the Rights of the Child.
It was argued that the question of what leave to remain such children were granted as a consequence had to be determined in accordance with s 55 and the UN Convention on the Rights of the Child.
The judgment applied the Supreme Court’s judgements in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 and HH v Deputy Prosecutor of the Italian Republic, Genoa  UKSC 125 where children’s best interests must be a primary consideration. The Court confirmed once again that the test for the assessing the best interests of children contains no “exceptionality” requirement.
The judgment concluded that the policy issued on 27 October 2009 and the updated version of on 6 April 2013 is unlawful in that it:
“effectively precludes case specific consideration of the welfare of the child(ren) from the discretionary decision to grant immediate ILR or limited DL [§43].
This judgment is likely to have far reaching impact on those children who were granted DL under the 2009 policy as well as children granted leave to remain under new 2013 policy where applicants are granted four successive periods of 2 ½ years, equalling 10 years leave, before they are granted ILR:
Further “Transitional Arrangements” under section 10 of the policy make plain that “Those who, before 9 July 2012, have been granted leave under the Discretionary Leave policy in force at the time will continue to be dealt with under that policy through to settlement …” The effect of the Transitional Arrangements is, therefore, that the 2009 policy will continue to apply to a considerable, if diminishing, number of applicants for several years to come. The 2009 policy will require amendment to make it lawful in relation to children in the light of this judgment. I deliberately do not express any view as to the lawfulness of the new 2013 policy, which does employ some different language and which has not been the subject of detailed argument or indeed close consideration by myself. Whether the Secretary of State might consider it wise to review also the lawfulness of the 2013 policy, insofar as it relates to children, in the light of this judgment is entirely a matter for her. [§ 59]
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