News Law Centre success in High Court for vulnerable teenager denied settlement SM v SSHD Judgement 6 June 2019 Central England Law Centre has succeeded in getting a refusal to grant settlement to a vulnerable teenager with two British brothers quashed and a reconsideration ordered. Upholding a claim for judicial review brought by SM’s mother as her litigation friend, the Upper Tribunal has reaffirmed the principle established in the High Court case of SM & others  EWHC 1144 (Admin) that in considering which conditions should be attached to the grant of leave for a child, a mandatory requirement to show ‘exceptionality’ is inconsistent with the Secretary of State’s duty to treat a child’s ‘best interests’ as a primary consideration: s 55 Borders Citizenship Immigration Act 2009. SM’s situation SM is a young person aged 16 years with a complex history of exposure to domestic abuse, insecurity and resulting self-harm. The Asylum Support and Immigration Resource Team, (‘ASIRT’) a charity based in Birmingham, made an application for further limited leave for SM under the Immigration Rules but included detailed representations expressly seeking a grant of ILR (Indefinite Leave to Remain)outside the Rules for SM in light of her particular circumstances and the s 55 duty. By a decision in November 2017 the Secretary of State granted the default ’30 months’ under the rules but did not address the express request to grant ILR outside the rules. SM issued judicial review proceedings as a consequence of which a further decision was issued and the UT granted permission for grounds to be amended to challenge that decision. SM argued that although the second decision was more detailed, it remained flawed in public law terms because the Secretary of State had failed to discharge his s 55 duty, to apply his published policy correctly and failed to take into account relevant matters. At the hearing the Secretary of State argued that absent an application for ILR under the rules (together with the relevant fee as there is no fee waiver for ILR, even for destitute children) the Secretary of State could not be required to consider granting it. By a judgment dated 20 June 2019, the Upper Tribunal quashed the refusal to grant ILR to SM reasoning that: (i) the Secretary of State’s policy was lawful as capable of being applied consistently with the s 55 duty because it (a) required the decision-maker to consider granting non-standard periods of leave or ILR outside the rules when asked to do so and (b) distinguished appropriately between adults and children as to how that discretion should be exercised; (ii) however, the decision-maker had misapplied the Secretary of State’s policy by imposing an ‘exceptionality’ threshold which the policy itself did not impose on children: “The policy does not confine the grant of ILR to children who can demonstrate that a very high or ‘exceptional’ threshold is reached – to do so would of course undermine the very principle of s.55. For that reason, the policy draws clear distinction between adult and child.” (Judgment at § 58). (iii) in light of the errors in approach identified it could not be said (as submitted by the Secretary of State) that any reconsideration would be ‘highly likely’ to lead to the same result; (iv) rather there was in reality only room for one conclusion as to where SM’s best interests lay, and that was for her to be granted ILR. The only remaining question was whether the Secretary of State had identified a sufficiently weighty counter-veiling factor such as to displace SM’s best interests in light of her particular circumstances. The Secretary of State had cited ‘unfairness’ to others (including children) on the ’10 year route’ to settlement. As the UT pointed out, in considering whether a decision to grant ILR to SM was ‘unfair’ it was not logical to compare SM’s case with that of others who were not in a ‘comparable situation’. Case note: 1. This judgment serves as a timely reminder that the Secretary of State’s wide discretion under s 3 Immigration Act 1971 whether to impose conditions on grants of leave to remain to children must be exercised carefully on the facts of each individual child and treating their best interests as a ‘primary considerations’. As the Children’s Commissioner has noted in the report commissioned by her office and cited in the judgment “Children’s Voices: A review of the evidence on the subjective wellbeing of children subject to immigration control in England”. “Children subject to immigration control, and particularly those awaiting a decision or on a short term period of leave to remain in the UK, reported experiencing high levels of anxiety, stress and fear in relation to their insecure immigration status, their uncertainty about their future in the UK and the possibility of being forced to return to their countries of origin. The trauma caused by living in a ‘state of limbo’ emerged as the dominant source of stress and anxiety in migrant children’s lives, and the most important determinant of their wellbeing. It also reduced their ability to recover from trauma they had experienced in the past.” 2. In addition the judgment firmly rejects the Home Office submission that only fee-paid applications under the rules for settlement can require the Secretary of State to exercise discretion outside the rules where an express request is made. This means that ASIRT were wholly correct to apply for limited leave within the rules but seeking an exercise of the wider discretion under s 3 Immigration Act 1971 outside the rules, supported by express reliance on s 55 and strong evidence. 3. The judgment also reiterates the essential ingredients of policy guidance directed at decision-makers in children’s cases. Any Home Office published policy, in order to be lawful, will need to spell out to decision-makers (i) the essential function of exercising the Secretary of State’s s 3 IA 1971 discretion outside the rules as a means of discharging the s 55 duty to individual children (ii) the need for an individual assessment of a relevant child’s best interests and (iii) the requirement to balance whether in the individual case there is a sufficient counter-veiling imperative which displaces those best interests absent which discretion should be exercised in the interests of the child. SM was represented by Amanda Weston QC of Garden Court Chambers instructed by Michael Bates of Central England Law Centre. Please note: the image accompanying this article is a stock image.