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Home Office policy on discretionary leave for children ruled unlawful

Welfare and best interests must be considered before deciding on time

9 May 2013

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The welfare and best interests of immigrant children must be considered before determining the period of leave to remain that they are granted, the High Court has ruled.

Successive grants of short periods of leave to remain can leave children in a state of limbo and may harm their welfare, the High Court said.

SM and TM and JD and Others v SSHD [2013] EWCA 1144 (Admin) concerned a challenge to refusal to grant indefinite leave to remain to children who had been granted leave to remain for three years under Article 8 of the ECHR.

Coram Children's Legal Centre (CCLC) intervened in the case.

"We are delighted that the court has confirmed that children's interests must be a primary consideration in all immigration decisions affecting them," Sophie Freeman, solicitor for CCLC (pictured) said.

"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 home secretary must now amend the relevant Home Office policy to make it lawful.

CCLC provided the court with evidence of the consequences on a child's mental health, welfare and development caused by temporary status, and reminded the court of the government's duty to safeguard children under section 55 of the Borders, Citizenship and Immigration Act 2009.

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Children