R (Kone) v Secretary of State for the Home Department concerned a Home Office decision to grant limited leave to a child instead of settlement, because although her father was a British citizen living in the UK, her mother only had limited leave. The Court of Appeal held that the Home Office view was incorrect. Ms Kone was represented by Patrick Lewis from Garden Court Chambers, instructed by Stefan Vnuk, Senior Solicitor at Coram Children’s Legal Centre.
Ms Kone had applied for indefinite leave to enter the UK to join her parents under Part 8 (paragraph 297) of the Immigration Rules in April 2015, when she was still a child. Her father is a British Citizen, and her mother had limited leave to remain in the UK. This application was refused on appeal as she had failed to provide a tuberculosis test certificate, although the Tribunal agreed that she could otherwise have met the legal requirements.
She applied again in October 2018, with a tuberculosis test certificate, but was refused in June 2019. However, the Home Office granted her limited leave as a child under Appendix FM.
The legal point under discussion was paragraph 297(i)(f) of the Immigration Rules. This sets out the requirements for a child to be granted indefinite leave to enter, if one of their parents is already settled or is being admitted to the UK for settlement with them. Rule 297 generally requires that both parents (if living and with parental responsibility) must already be settled in the UK, or being admitted for settlement with the child.
However, part (f) says that a child can be admitted with only one settled parent if :
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
Ms Kone arrived in the UK in July 2019. She later challenged the decision to refuse her settlement application via judicial review. The Home Secretary agreed to reconsider her application within 3 months, with the sole issue at stake being whether she should have been granted limited leave under Appendix FM, or indefinite leave under paragraph 297. In October 2023, the Home Secretary refused the application again and Ms Kone once again applied for judicial review.
Ms Kone was successful in the Upper Tribunal in July 2024, which found that applicants are not excluded from relying on para 297 just because one of their parents has limited leave.
The Home Secretary appealed that decision to the Court of Appeal, which unanimously dismissed the appeal on all grounds. The Home Office has been refused further permission to appeal, and has accepted the outcome of the decision.
The Court’s findings
The Court found that if a child can show that they meet the requirements of paragraph 297(i)(f), they can be granted indefinite leave to enter regardless of the location or immigration status of their other, non-settled parent. This approach can logically be extended to paragraph 298(i)(d) which covers indefinite leave to remain, as well as extended to paragraph 297(i)(e) and 298(i)(c), where one parent is settled and has sole responsibility for the child’s upbringing; so it should not matter if the child’s other parent (who in any event lacks responsibility for the child) happens to have limited leave in the UK.
The Court also clarified that whether or not a child could be granted leave under another part of the Rules is irrelevant to the question of whether there are “serious and compelling family or other considerations which make exclusion of the child undesirable”. The question is simply whether it would be undesirable if the child were to be excluded from the UK.
Implications
This case clarifies a potential pathway to immediate settlement for a significant number of children who, under the Home Office’s previous interpretation, were excluded on the basis that they qualified only for limited leave. Where a child has one settled parent and one with limited leave, the availability of limited leave should be no barrier. The child will still need to meet the high bar of showing that there are serious and compelling considerations that would make their exclusion undesirable; although if both parents are in the UK, there is often likely to be good evidence that a child should be with their parents.
It is also worth noting that paragraph 297 and 298 permit relatives, not just parents, to sponsor children. Although success in such cases will be rare and applications complex, it is possible.
However, for those children that do meet the requirements, settlement can offer them essential long-term stability. For children who are considering higher education, it could make the difference between being able to afford university or being priced out as an overseas student. There will also be substantial financial savings for families on application fees for repeated grants of limited leave to remain. This is a decision that could make a huge difference to many families.
The full High Court judgment is available here.
