Kone, R (on the application of) v The Secretary of State for the Home Department

This is an appeal by the Secretary of State for the Home Department against a decision of the Upper Tribunal of 30 July 2024. By that decision, the Upper Tribunal granted a claim for judicial review and quashed a decision of the Secretary of State dated 17 October 2023 refusing the respondent, Ms Kone’s, application for indefinite leave to enter the United Kingdom pursuant to paragraph 297(i)(f) of the Immigration Rules.

In brief, the respondent was a child who was, at the material time, living in the Ivory Coast. Her father was settled in the United Kingdom and her mother had limited leave to remain in the United Kingdom. She applied for indefinite leave to enter the United Kingdom on the basis that she satisfied the requirements of paragraph 297(i)(f) of the Immigration Rules as she was a child in circumstances where:

“one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care”.

That application was refused on the basis that the rule applied when only one parent was present and settled in the United Kingdom. As both of the respondent’s parents were living in the United Kingdom (one, the father, was settled here and one, the mother had limited leave to remain), the Secretary of State considered that paragraph 297(i)(f) did not apply. She refused to grant the respondent indefinite leave to enter. She did grant the respondent limited leave to enter the United Kingdom on the basis that the respondent’s mother had limited leave to remain. The respondent applied for judicial review of that decision.

The Upper Tribunal held that the Secretary of State had misinterpreted paragraph 297(i)(f) of the Immigration Rules. The requirement in that sub-paragraph was, simply, that one parent be present and settled in the United Kingdom. There was no implied requirement that only one parent be present and the other parent had to be outside the United Kingdom. Further, in relation to whether exclusion from the United Kingdom was undesirable, paragraph 297(i)(f) required the Secretary of State to carry out what the Upper Tribunal described as a normative assessment, that is, asking whether it would be undesirable if the respondent were excluded from the United Kingdom, not whether, as a matter of fact, she would be excluded (as she had been granted limited leave to remain). Consequently, the fact that the Secretary of State had granted limited leave to remain did not prevent the respondent from meeting the relevant requirements.

The Secretary of State appeals on three grounds, namely that the Upper Tribunal erred;

Subject to immaterial exceptions, a person who is not a British citizen, requires leave to enter the United Kingdom: see section 3(1) of the Immigration Act 1971 (“the 1971 Act”). Section 3(2) requires the Secretary of State to lay before Parliament statements of the rules, or any changes to the rules, laid down by her as to the practice to be followed for regulating entry into and stay in the United Kingdom

Part 8 of the Immigration Rules originally set out the requirements that family members seeking entry into the United Kingdom had to satisfy. Paragraph A277 provides that from 9 July 2012, Appendix FM to the Immigration Rules will apply to applications to which Part 8 applied “except where the provisions of Part 8 are preserved” by other provisions. Certain paragraphs in Part 8, including paragraph 297 (with one immaterial qualification) continue to apply (the requirements for family members are otherwise largely set out in Appendix FM to the Immigration Rules). Paragraph 297 is in the following terms:

“Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom.

297 The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i)

is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a)

both parents are present and settled in the United Kingdom; or

(b)

both parents are being admitted on the same occasion for settlement; or

(c)

one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d)

one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e)

one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or

(f)

one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii)

he is under the age of 18; and

(iii)

is not leading an independent life, is unmarried and is not a civil partner, has not formed an independent family unit; and

(iv)

can, and will, be accommodated by the parent, parents, or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(vi)

can and will be maintained adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds;

(v)

the applicant must not fall for refusal under the general grounds for refusal”.

Paragraph 298 dealt with the requirements for a child seeking indefinite leave to remain in (as opposed to enter) the United Kingdom.

For completeness, given the arguments advanced at the hearing, it is necessary to refer to paragraph 301. That was in force at the time that paragraph 297 came into force although it had ceased to be applicable at the time that the decision in this case was reached (save in a small number of transitional cases which are not material to this case). The provisions of that paragraph, so far as material, provided that:

“Requirements for limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement.

301.

The requirements to be met by a person seeking limited leave to enter to enter or remain in the United Kingdom with a view to settlement as the child of parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:

(i)

is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:

(a)

one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or

(b)

one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing;

(c)

one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care…..”

Applications from children seeking limited leave to enter and remain are now dealt with under Appendix FM to the Immigration Rules.

Finally, a number of other transitional provisions are included in Part 8 of the Immigration Rules, including paragraph A277B. That provides that where the Secretary of State is considering an application for limited or indefinite leave to remain to which Part 8 continues to apply and the applicant does not meet the requirements for indefinite leave but does meet the requirements for limited leave, the application will also be considered under the relevant provisions of Appendix FM.

The respondent is a national of the Ivory Coast born on 16 October 2002. She applied to join her father, who is a British citizen present and settled in the United Kingdom, in April 2015. That application was refused for a number of reasons. The respondent appealed to the First-tier Tribunal. In a decision promulgated on 21 August 2017, the First-tier Tribunal found the respondent’s father was present and settled in the United Kingdom and her mother had limited leave to remain until 2018. It further held that there “were persuasive and powerful circumstances, which can rightly be categorised as compelling” for allowing the respondent to join her family in the United Kingdom. However, as the respondent had not supplied a mandatory certificate showing that she had been tested for tuberculosis, the appeal was dismissed. The respondent did subsequently obtain the mandatory tuberculosis test certificate.

On 3 October 2018, the respondent applied again for indefinite leave to enter the United Kingdom. The application form that she completed makes it clear that the application was for settlement (i.e. indefinite, not limited, leave to enter). It names the sponsor as Haroun Ishaq Kone, a British citizen, and the form states that he is her father. The form makes it clear that the respondent is travelling to the United Kingdom with her father and would live at her father’s address. The application enclosed the decision of the First-tier Tribunal and enclosed the tuberculosis test certificate.

On 18 June 2019, the application for indefinite leave under paragraph 297 was refused. The respondent was, however, given limited leave to enter and remain in the United Kingdom until 26 September 2021 pursuant to Appendix FM of the Immigration Rules. She came to the United Kingdom on 9 July 2019, when she was sixteen years old. The respondent sought judicial review of June decision on the grounds that she should have been granted indefinite leave under paragraph 297. By a consent order of 16 June 2023, the respondent agreed to withdraw the claim for judicial review. The recitals record that that agreement was reached on the parties agreeing that the issue in the case was the decision of the Secretary of State to grant limited, rather than indefinite, leave to enter the United Kingdom and the Secretary of State agreeing to “reconsider the application for settlement” and to issue a new decision within three months of the date of the consent order absent special circumstances.

On 17 October 2013, the reconsideration of the application was completed and the Secretary of State maintained the decision to refuse indefinite leave to remain as the child of a parent settled in the United Kingdom. The decision letter set out paragraph 297 of the Immigration Rules. It then addressed paragraphs 297(i)(a) to (e) and concluded that the respondent did not qualify for indefinite leave under any of those paragraphs. It then considered paragraph 297(i)(f) and said this:

“As both your parents are living together in the United Kingdom, you do not meet the requirements of 297(f) as this applies to “one parent or relative”. This also requires there to be serious and compelling circumstances that make exclusion of the child undesirable.

…..

When you re-applied in 2018, your circumstances had changed. Your mother now had limited leave to remain under the 10 year Family and Private Life Route. Therefore, the ECO considered your application under the Child Appendix FM rules, which was the correct route based on your circumstances……

In section D-ECC rule 1.1 of Appendix FM, it states that if the applicant meets the requirements for Entry Clearance, the child will be granted entry clearance of a duration which will expire as the same time as that granted to the Applicant’s parent, and will be subject to the same conditions in respect of recourse to public funds as that parent. Thus in line with this policy, we issue children in line with the parent who has the least leave”.

The Upper Tribunal rejected the argument of the Secretary of State that, on a proper interpretation, paragraph 297(i)(f) of the Immigration Rules did not apply where one parent of the child is present and settled in the United Kingdom but the other parent is also in the United Kingdom either lawfully, or unlawfully. The Upper Tribunal concluded that:

“29.

In my view, the natural and ordinary meaning of the requirement in paragraph 297(i)(f) is clear and does not give rise to any mischief or unintended consequences which would require a reading in to the provision of any additional words or qualification as suggested by the Respondent. There is no exclusion based on the initial reference to ‘a parent’, nor any choice between sub-paragraphs of the Immigration Rules ad consequential construction of paragraph 297(i)(f) that could be tied to the intention of a particular applicant. Further, there is no implicit inclusion of the word ‘only’ before a parent; the requirement is simply that one parent is present and settled in the United Kingdom without any specification of where the other parent is or what their status is. That is in contrast to the wording of the five earlier sub-paragraphs, all of which make express provision as to the required situation of the other parent. If there was a similar intention that only one parent was in the United Kingdom and the other was not, then express wording to that effect would be expected in paragraph 297(i)(f).

30.

That construction is also in keeping with the overall purpose of paragraph 297 as found in TD (Yemen) of a provision designed to maintain or effect family unity, albeit with the prospect that if the onerous conditions in paragraph 297(i)(f) are met, a family split may be required in the child’s best interests. A provision which fails to take into account the best interests of a child, which is in the vast majority of cases to be with both parents, because both parents are in the United Kingdom but only one has settled status does not promote or achieve family unity.”

The Upper Tribunal then rejected the Secretary of State’s argument that a child would not be able to satisfy the requirement that there be “serious and compelling family or other considerations which make exclusion undesirable” as the respondent had in fact been granted limited leave to remain in the United Kingdom and so would not be excluded. The Upper Tribunal said:

“47.

In any event, as to the matter of substance of the interpretation of the test in paragraph 297(i)(f) requiring there to be “serious and compelling family or other considerations which make the exclusion of the child undesirable”, I find that this is a normative rather than a factual assessment for the following reasons.

48.

First, there is an analogy which can properly be drawn with the interpretation of the test in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 that it “would not be reasonable to expect the child to leave the United Kingdom”. Although phrased slightly differently, the provisions are in place for the same purpose, to enable an assessment of the best interests of the child and to consider whether there are reasons in that context for them to be in the United Kingdom and with a family member here.
49. There is no clear difference between the ‘reasonable to expect’ wording and ‘exclusion undesirable’ in practical terms; the assessment is a similar one with a similar set of relevant factors to take into account when determining it. The two can not be distinguished on the basis that one considers whether the status quo can be maintained and one considers whether there should be a change; given that exactly the same wording is also used in paragraph 298(i)(d) of the Immigration Rules which is an in-country application for indefinite leave to remain and therefore would also, as a matter of practicality, require an assessment not of maintaining the status quo of the child being outside of the United Kingdom, but consideration of whether they should be removed, in exactly the same kind of situation as section 117B(6) of the Nationality, Immigration and Asylum Act 2002 would apply.

50.

Secondly, in accordance with paragraph A277B of the Immigration Rules, there must first be an assessment of whether an applicant meets the requirements for limited or indefinite leave to remain under Part 8 of the Immigration Rules, and only if they do not, should the application then be considered under Appendix FM. At the oral hearing, Mr Biggs was careful in his submissions to clarify that it is only in circumstances where an applicant is eligible and granted leave to remain under Appendix FM that they could not meet the requirements of paragraph 297(i)(f) of the Immigration Rules as they would not in fact be excluded. The initial suggestion that it was only eligibility for another form of leave that would be sufficient was quickly withdrawn, presumably because it would be practically entirely unworkable for the Respondent to consider what other leave a person may be entitled to in the context of an application under paragraph 297(i)(f) of the Immigration Rules. In these circumstances, a person could not be refused under paragraph 297(i)(f) because of a grant of leave to remain under Appendix FM as the latter could not, in accordance with paragraph A277B, even be considered until the primary application failed.

51.

Thirdly, the same formulation of “serious and compelling family or other considerations which make the exclusion of the child undesirable” also appears as one of the requirements for a grant of leave to remain under Appendix FM (in paragraph E-ECC.1.6(c) and E-LTRC.1.6(c)) where one parent is in the United Kingdom with limited leave to enter or remain (or being granted entry clearance for the same). It would be odd at the very least for the same wording to lead to opposite results depending on whether it was considered in the context of an application for indefinite leave to enter or an application for entry clearance or leave to remain – even on a purely factual application, the same circumstances, such as those in the present appeal, would fail under paragraph 297(i)(f) but could succeed under Appendix FM.”

The Upper Tribunal therefore granted the claim for judicial review and quashed the 17 October 2023 decision.

The Secretary of State has permission to appeal on three grounds. It is logical to deal with ground 3 first, then ground 1 and then, if necessary, ground 2.

Mr Biggs, for the Secretary of State, submitted that the words “one parent or relative is present and settled in the United Kingdom” in paragraph 297(i)(f) impliedly require that only one parent or relative is present. Where, as here, two parents are present in the United Kingdom, an applicant cannot satisfy the requirements of the paragraph. In oral submissions, Mr Biggs developed the argument more broadly. He submitted that where a child intended to join both parents in the United Kingdom (one settled, one with limited leave) that application did not fall to be considered under paragraph 297 of the Immigration Rules but rather fell to be considered under the provisions in Appendix FM dealing with limited leave to enter and remain. That was consistent with the context and the purpose underlying the Rules, which, he submitted, was that where two parents were present in the United Kingdom, one with settled status and one with limited leave, the policy was to grant the child leave equivalent to the leave of the parent with the shortest duration. That policy, he submitted, would be undermined by allowing an applicant to apply for indefinite leave rather than limited leave.

Mr Lewis, for the respondent, submitted that the words of paragraph 297(i)(f) imposes no requirement that the other parent must not be present in the United Kingdom.

The proper approach to the interpretation of the Immigration Rules is set out by in the decision of Lord Simon Brown in the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 in the following terms:

“10.

There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffmann said in MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230, 1233, para 4:

“Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”

…

Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.”

As the Supreme Court recognised in R (Wang) v The Secretary of State for the Home Department [2023] UKSC 21; [2023] 1 WLR 2125 at 29 to 31, that did not involve any significant departure from the general principles of statutory construction. That process involves considering the words used, read in context, and having regard to the purpose underlying the measure in question. We accept that the provisions of paragraph 297 need to be read in the context of Part 8 as a whole, and as part of a scheme as a whole which included, when originally adopted, paragraph 301 among other provisions.

Against that background, the interpretation of paragraph 297 is relatively straightforward. It is dealing with applications by persons seeking indefinite leave to enter the United Kingdom as a child of a parent, parents or a relative present and settled in the United Kingdom. The requirements that an applicant must satisfy include, amongst others, that he is seeking leave to enter to accompany or join a parent, parents or a relative present and settled in the United Kingdom in the circumstances set out in paragraph (i). Sub-paragraphs (a) to (d) address different situations involving both parents. Sub-paragraphs (a) to (c) deal with situations where both parents are present and settled or are being admitted for settlement, or one parent is settled and the other is being admitted. Sub-paragraphs (d) deals with a situation where one parent is present and settled and the other is dead and (e) deals with a situation where one parent is present and settled and has had sole responsibility for the child’s upbringing.

Sub-paragraph (f) sets out the three circumstances that must be satisfied for that sub-paragraph to be satisfied. They are that (1) “one parent or a relative is present and settled in the United Kingdom” or is being admitted for settlement and (2) “there are serious and compelling family or other considerations which make exclusion of the child undesirable” and (3) suitable arrangements have been made for the child’s care.

First, as a matter of language, a child seeking indefinite leave to enter will satisfy the first of those circumstances if one parent is present and settled in the United Kingdom. The subparagraph does not impose any requirements in relation to the other parent (i.e. whether that parent has to be settled or have limited leave to remain in the United Kingdom or must not be in the United Kingdom). It is sufficient if one parent is present and settled.

Secondly, that interpretation is consistent with the purpose underlying Part 8, including paragraph 297, of the Immigration Rules. The purpose is to be determined from the language of the Immigration Rules. The obvious purpose is to define the circumstances in which families who are separated may be reunited. That was recognised by Upper Tribunal in TD (Yemen) v Secretary of State for the Home Department [2006] UKAIT 00049, a case relied upon by the Secretary of State. That case involved paragraph 297(i)(e) (not (f) as is the case here) and involved a father present and settled in the United Kingdom and a mother living in Yemen (not a case where both the father and mother are present in the United Kingdom and one is settled and one is not). The Upper Tribunal said at paragraph 48 of its reasons that the “purpose of paragraph 297 is clear: it is designed to maintain or effect family unity”. I agree. The remainder of the observations of the Upper Tribunal in that case need to be considered with care as they reflect a different sub-paragraph and different circumstances.

Mr Biggs submitted that that the wording of paragraph 297 had to be read in the context of the Immigration Rules as a whole and the need to treat them as a coherent scheme, and the policy underlying the Immigration Rules which was that a child applying to join both parents should only be granted leave equivalent in duration to the shortest leave held by either parent. So, if one parent was settled and the other had limited leave to remain, a child could only apply for and be granted limited leave to enter, not indefinite leave to enter.

First, he submitted that that result followed from the wording of paragraph 297(i)(f). He submitted that it was implicit that the provision should be read as meaning “only one parent is present and settled in the United Kingdom”. However, there seems to be no warrant for reading in the word “only”. Furthermore, a child such as the respondent in the present case would still fulfil that requirement. Such a child would have “only one parent present and settled” – the other parent (the mother) would be present but not settled. What the Secretary of State is, actually, seeking to do is to interpret paragraph 297(i)(f) as precluding a child from qualifying for indefinite leave to enter where he has one parent present and settled in the United Kingdom, and another parent who has limited leave to be in the United Kingdom. There is no basis in the wording of paragraph 297 justifying such an interpretation.

In oral argument, Mr Biggs submitted that the key is to focus on the intention of the child. Was the child seeking to join both parents – in which case the requirements of subparagraph 297(i)(f) are not satisfied – or was the parent seeking to join only one parent and that parent was present and settled in the United Kingdom – in which case they are. He submitted that that followed form the opening words of subparagraph 297(i) which refer to a child “seeking leave to enter to accompany or join a parent, parents or a relative”. That, he submitted, shows the focus of subparagraph 297(i)(f).

I do not accept that submission. The opening words in paragraph 297(i) describe the applicant – he or she must be seeking to enter to accompany or join a parent, parents or relatives. It is the words in 297(i)(f) which describe the circumstances that have to be satisfied in order to qualify for indefinite leave to enter, one of which is that “one parent has to be present and settled in the United Kingdom”. There is nothing to suggest that that is limited so that the subparagraph can be met if one parent only is present in the United Kingdom.

Mr Biggs further submitted that the context of the Immigration Rules, or the need to preserve a coherent system, required that a child applying to join both parents should only be granted leave equivalent in duration to the shortest leave held by either parent. He pointed in particular to paragraph 301 (which was applicable when paragraph 297 came into effect). He submitted that pursuant to paragraph 301(i)(a) a child with one parent present and settled in the United Kingdom and one with limited leave to enter would be entitled to limited leave. He submitted that provision showed a clear preference in favour of granting limited leave, not indefinite leave, in such circumstances. Further, the requirement in paragraph 301(i)(a) could be circumvented if a child could simply apply for indefinite leave to enter. He also relied on paragraph 301(i)(c) where a child may obtain limited leave if one parent has limited leave to remain. He maintained that the Immigration Rules could only be read coherently if they required the child to be granted one type of leave only, and that that leave should be equivalent in duration to the shortest leave enjoyed by one of the parents.

I do not accept that argument either. First, a child may be able to meet the requirements under the Immigration Rules for the grant of more than one status – e.g. indefinite leave to enter, and limited leave. It is a matter for the child to determine whether he wishes to apply for indefinite leave (or limited leave only) and the role of the Secretary of State is to determine whether the child meets the requirements for the grant of the type of leave for which the child has applied. Part 8 of the Immigration Rules does not require the Secretary of State to consider, and give priority to, a shorter type of leave than was actually applied for.

Secondly, in fact, paragraphs 297 and 301 (when that paragraph was applicable) set out different circumstances in which a child may qualify for indefinite leave to enter, or limited leave to enter or remain, respectively. It is not the case that two different types of leave are granted in identical circumstances and it cannot be inferred that the Immigration Rules intended one route to be used in priority to another.

A child may only apply for indefinite leave to enter under paragraph 297(i)(f) if he has one parent who is present and settled in the United Kingdom if there are serious and compelling family or other considerations which make exclusion of the child from the United Kingdom undesirable and the other circumstances.

By contrast, there were different requirements for those seeking limited leave to enter or remain under paragraph 301 when that was applicable. Under paragraph 301(i)(a) a child will at least be eligible for limited leave to remain if one parent is present and settled and one has been or is being given limited leave. There is no requirement then to show serious and compelling family or other considerations to qualify for that type of limited leave. The fact that a child would have been able to obtain limited leave in one broad set of circumstances says nothing about whether that precludes a child from applying for indefinite leave if he satisfies requirements which are more onerous in certain respects.

Similarly, in relation to paragraph 301(i)(c), a child would have qualified for limited leave if the child had one parent who has or is being given limited leave to remain. That does not indicate that the Immigration Rules precluded him from applying for indefinite leave if he satisfied other requirements, i.e. he has one parent who has limited leave but also has one parent who is present and settled, and there are compelling considerations why the child should not be excluded from the United Kingdom.

Finally Mr Biggs relied upon Appendix FM. That includes provisions governing applications by children for limited leave to enter and remain in section EC-C of Appendix FM. He submitted that Part 8 and Appendix FM should be read as a coherent whole and the underlying aim was that where one parent had limited leave, the Secretary of State would start with deciding if a child qualified for limited leave rather than considering an application for indefinite leave. Appendix FM was not in force at the time that paragraph 297 of the Immigration Rules was made. The transitional provisions provide that Appendix FM will apply to all applications to which Part 8 applied on or before 8 July 2012 “except where the provisions of Part 8 are preserved and continue to apply”. A280 provides that paragraph 297 continues to apply save that the application must not fall for refusal under paragraph S-EC.1.9 of Appendix FM. That provides that the application will be refused if the Secretary of State considers that the applicant’s parent or parent’s partner poses a risk to the applicant. Paragraph 297 is not otherwise made subject to Appendix FM. In particular, there is nothing to suggest that a child is precluded from applying for indefinite leave to enter under paragraph 297(i)(f) simply because he could apply for limited leave under Appendix FM. There is nothing to suggest that the Secretary of State may, or must, consider whether to grant limited leave under Appendix FM before considering the application for indefinite leave made under paragraph 297(i)(f).

Mr Biggs also submitted that the policy underlying paragraph 297 was not intended to provide what he described as a “shortcut to settlement”. That, with respect, is simply an assertion that the policy underlying the Immigration Rules is to require the child to be considered for limited leave if the child has one parent present and with limited leave in the United Kingdom. There is, however, nothing in the Immigration Rules or the purpose underlying the Rules which suggests that that is the policy A child is not, therefore, taking advantage of any “shortcut” to settlement if he applies for indefinite leave to enter. He is simply applying for a type of leave for which he may be eligible.

It is also relevant to note that the interpretation advanced by the Secretary of State does not appear to be consistent with the obvious policy underlying Part 8, namely the maintenance of family unity. A child would be entitled to indefinite leave to enter under paragraph 297(i)(f) if there is only one parent settled and present in the United Kingdom – but could not do so if another parent was present and had limited leave. It is difficult to understand why a child should be at a disadvantage in terms of seeking indefinite leave to enter because he wants to live with both parents rather than one. Further the Secretary of State’s interpretation could lead to odd results. By way of example only, a child may have a mother who is present and settled in the United Kingdom and a father, whom the child may never have met, who has limited leave to remain. On the Secretary of State’s interpretation of paragraph 297(i)(f), the child cannot apply for indefinite leave to enter. He could only apply for limited leave of the same duration as the parent whom she may not know and with whom she does not intend to live. To give another example, a child, bizarrely, might be better off if the parent with limited leave left the United Kingdom and the child would then be able to apply for indefinite leave to enter to live with the remaining parent who was settled.

For all those reasons, on a proper interpretation of paragraph 297(i)(f) of the Immigration Rules, a child may qualify for indefinite leave to enter if the child has one parent present and settled in the United Kingdom (even if the other parent is present and has limited leave to remain) and satisfies the other requirements of the paragraph. The Upper Tribunal was correct to find that the Secretary of State had erred in its decision of 17 October 2023. I would dismiss ground 3 of the appeal.

The Secretary of State did not refuse the respondent’s application for indefinite leave to enter because she could not demonstrate that there were serious and compelling family or other considerations which made exclusion of the respondent from the United Kingdom undesirable. That is understandable. The respondent was then a 16 year old child living in the Ivory Coast with a family friend (having previously lived with her grandmother who had died). Her mother and father were both in the United Kingdom. However, having granted the respondent limited leave to remain in the United Kingdom, Mr Biggs submitted that the fact that the respondent would not immediately be excluded from the United Kingdom was a relevant factor in deciding whether this requirement in paragraph 297(i)(f) was satisfied. I can deal with this argument relatively shortly.

The question that this part of paragraph 297(i)(f) requires the Secretary of State to answer is whether, if the respondent were to be excluded, would that be undesirable?

In those circumstances, the fact that the child has been granted limited leave to remain is simply not a relevant fact. The immigration status of the applicant is not an issue to be considered. The sole issue is whether the child’s exclusion from the United Kingdom, if were to occur, would be undesirable. No one, least of all the Secretary of State, has suggested that the answer to that question is anything other than that it would be undesirable if this respondent were excluded.

Mr Biggs appeared to accept that the question is that identified at paragraph 43 above. However, he submitted, in reliance on Runa v Secretary of State for the Home Department [2020] EWCA Civ 51; [2020] 1 WLR 3760, particularly paragraph 36, that the full background facts must be established against which the statutory question can then be addressed. What has to be established, however, are the material facts which are relevant to the question to be asked, e.g. where the respondent is living, who is caring for her, the extent of the bonds between her and her parents in the United Kingdom and so forth, in order to determine whether there are serious and compelling family or other considerations which would make exclusion from the United Kingdom undesirable.

The submissions of Mr Biggs are, in fact, contrary to the approach set out by this Court in AB (Jamaica) v Secretary of State for the Home Department [2019] EWCA Civ 661; [2019] 1 WLR 4541. There, the issue concerned the wording of section 117B(6) of the Nationality, Immigration and Asylum Act 2002. That subsection provided that the public interest did not require the removal of a person who had a genuine and subsisting parental relationship with a child and “it would not be reasonable to expect the child to leave the United Kingdom”. Counsel for the Secretary of State in that case submitted that the question did not arise where, in fact, the child would not leave the United Kingdom. Singh LJ, with whom the other members of the Court agreed, rejected that submission. The question was whether, if the child were required to leave the United Kingdom, would that be reasonable? That question had to be answered and it would not be an appropriate or helpful response to such a question to refuse to answer it on the basis that the Secretary of State was not proposing to exclude the child. The same position applies here. The question is whether, if the respondent were excluded from the United Kingdom, would that exclusion be undesirable? That question has to be answered.

Secondly, on the facts of this particular case, it would not be open to the Secretary of State to take into account the fact that the respondent had been granted limited leave. The respondent applied, from outside the United Kingdom, for indefinite leave to enter the United Kingdom to join her father who was present and settled in the United Kingdom. The Secretary of State, however, granted limited leave to enter and remain on the basis that the respondent’s mother was here and had limited leave. That was not the application that the respondent had made. When the judicial review proceedings concerning the lawfulness of that decision was settled by a consent order, the recitals to that consent order recognised that the real issue was whether the respondent should be granted limited or indefinite leave. The Secretary of State agreed to “reconsider the application”. That was an application that was made, by a child outside the United Kingdom, seeking indefinite leave to enter the United Kingdom. I accept that, in general terms, when a decision is quashed or reconsidered, a decision-maker can consider all material facts as they are at the time that a new decision is taken (and that decision may be, but need not be, the same as the first one). But it was clear in context that the Secretary of State was agreeing to reconsider the application on the basis that it was made, i.e. whether as a child outside the United Kingdom she met the requirements for the grant of indefinite leave. There would have been no purpose, and indeed it would have been seriously misleading, in agreeing to a reconsideration of the application for indefinite leave to enter if the answer was, inevitably, going to be that, now that the respondent had been granted limited leave, she could not qualify for indefinite leave.

For each of those two separate reasons, I would dismiss ground 1.

Both parties agree that the Upper Tribunal erred in its interpretation of paragraph A277B. That paragraph applies when the Secretary of State is considering applications for limited or indefinite leave to remain – whereas here, the Secretary of State was considering an application for indefinite leave to enter. Assuming that to be so, the error is not material. The Upper Tribunal relied on its interpretation of paragraph A277B as an additional reason for reaching its conclusion as to the proper interpretation of the phrase “a parent present and settled in the United Kingdom” in paragraph 297(i)(f). For the reasons given above, its interpretation was, in any event, correct and any error in the interpretation of paragraph A277B was simply not material. This ground cannot therefore lead to this appeal succeeding.

The Upper Tribunal was correct to find that the Secretary of State had erred in her decision of 17 October 2023. The Upper Tribunal correctly held that a child may apply for indefinite leave to enter pursuant to paragraph 297(i)f) of the Immigration Rules if the child has one parent present and settled in the United Kingdom (even if the other parent is present and has limited leave to remain) and satisfies the other requirements of the paragraph. I would therefore dismiss this appeal.

I agree. I only add, in regard to Ground 3, that the Secretary of State repeatedly asserted that the way the Immigration Rules work is that a child who is joining two parents will be granted leave to enter or remain at the same level as the parent with the lesser immigration status: see the decision under challenge at paragraph 15 above: “we issue children in line with the parent who has the least leave.” As Lewis LJ has shown, there is nothing in the wording of the Rules to support this bald assertion about their meaning, and Mr Biggs was unable to explain why it would be a coherent policy objective either, given that the acknowledged purpose of Part 8 is to promote family unity. Limited leave to remain, he told us, might typically be granted for 30 months. For a child who is or will be living with a settled parent to be required as a matter of principle to share the tenuous immigration status of a non-settled parent makes no apparent sense in child welfare terms, whether or not section 55 of the Borders, Citizenship and Immigration Act 2009 (which provides that the Secretary of State must make arrangements for ensuring that her immigration functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom) directly applies in the individual case.

I agree with both judgments.