The King on the application of CPH (by his mother and litigation friend DPH) v Secretary of State for the Home Department

Hearing date: 18 February 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 9 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Jonathan Moffett KC, sitting as a Deputy High Court Judge:

A. INTRODUCTION

This claim for judicial review arises out of a decision taken by the Defendant (“the Secretary of State”) on 31 January 2024 (“the decision”), by which the Secretary of State decided not to grant indefinite leave to remain (“ILR”) to the Claimant.

It is important to note that, as I explain below, there is an anonymity order in place in relation to the Claimant. Accordingly, there must be no reporting of the Claimant's identity, or of any other information which may lead to his identification.

In brief, the factual background to the claim is as follows. The Claimant applied to the Secretary of State for ILR. At that time, the Claimant was eight years old. In principle, he was eligible for a grant of ILR under Appendix Private Life to the Immigration Rules (“Appendix PL”), as a child who had been born in the United Kingdom and who had lived here continuously for at least seven years since birth. However, neither he nor his mother could afford to pay the requisite fee for an application under Appendix PL, and the fee was not paid. As a result, the Secretary of State considered that the Claimant's application for ILR under Appendix PL was invalid. The Secretary of State nevertheless considered whether to exercise her discretion to grant ILR outside the Immigration Rules. Having taken into account her policy, Family Policy: Family life (as a partner or parent) and exceptional circumstances (“the Family Policy”), the Secretary of State decided not to exercise her discretion in the Claimant's favour.

The Claimant challenges both the legislative and policy scheme pursuant to which the decision was taken, and the decision itself.

The Claimant's primary grounds of challenge rely on the duty imposed on the Secretary of State by s 55 of the Borders, Citizenship and Immigration Act 2009 (“the s 55 duty” and “the 2009 Act”, respectively), which requires her to make arrangements for ensuring that her functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. In particular, the Claimant's primary ground of challenge to the legislative and policy scheme pursuant to which the decision was taken rests on the contention that it fails properly to provide for the Secretary of State to have regard to the need to safeguard and promote the welfare of children when taking relevant decisions as to whether to grant ILR. Similarly, the Claimant's primary ground of challenge to the decision is based on the contention that, when taking the decision, the Secretary of State failed properly to comply with the s 55 duty.

The Claimant also advances grounds of challenge which contend that the legislative and policy scheme is incompatible with Convention rights, in particular the right to respect for private and family life under Article 8 of the European Convention on Human Rights (“Article 8”) and the right not to be discriminated against in the enjoyment of Convention rights under Article 14 (“Article 14”). In addition, the Claimant argues that the legislative and policy scheme is irrational. Similarly, in relation to the decision, the Claimant advances challenges which are based on Article 8, Article 14, and alleged irrationality.

Given the length of this judgment, it may be of assistance to the reader if I summarise my conclusions at the outset. For the reasons set out below, I have concluded that the relevant section of the Family Policy is unlawful because, in a case such as the Claimant's, it purports positively to authorise and approve the taking of decisions in a manner which does not comply with the s 55 duty. I have also concluded that the decision in the Claimant's case is unlawful because, when taking it, the Secretary of State did not properly comply with the s 55 duty. I have concluded that the remaining grounds of challenge to the legislative and policy scheme and to the decision fail and, in particular, that the challenges to the other measures which comprise the legislative and policy scheme fail.

It may also be of assistance to the reader to provide an index to the topics which this judgment covers.

A. Introduction: paragraphs 1–9

B. Preliminary matters: paragraphs 10–13

C. The factual background: paragraphs 14–32

D. The legislative and policy context

(1) introduction: paragraph 33

(2) the power to grant leave to remain: paragraphs 34–37

(3) the requirement to charge a fee for an application for ILR: paragraphs 38–48

(4) the Immigration Rules and Appendix PL: paragraphs 49–57

(5) the Family Policy: paragraphs 58–68

(6) the s 55 duty: paragraphs 69–77

(7) Convention rights: paragraph 78

(8) waiver of fees for citizenship applications: paragraph 79

E. The issues: paragraphs 80–85

F. The challenge to the framework based on the s 55 duty

(1) introduction: paragraphs 86–90

(2) the challenge to the Fees Regulations: paragraphs 91–96

(3) the challenge to Appendix PL based on the MM (Lebanon) case: paragraphs 97–118

(4) the challenge to Appendix PL based on the A case: paragraphs 119–129

(5) the challenge to the Family Policy: paragraphs 130–151

G. The challenge to the framework on other grounds

(1) the challenge to the framework based on Article 8: paragraphs 152–159

(2) the challenge to the framework based on Article 14: paragraphs 160–168

(3) the challenge to the framework based on irrationality: paragraphs 169–173

H. The challenge to the decision based on the s 55 duty

(1) introduction: paragraph 174

(2) the parties' arguments: paragraphs 175–177

(3) analysis: paragraphs 178–188

I. The challenge to the decision on other grounds

(1) the challenge to the decision based on Article 8: paragraphs 189–192

(2) the challenges to the decision based on Article 14 and irrationality: paragraph 193

J. Summary and remedy: paragraphs 194–199

At the substantive hearing, the Claimant was represented by Mr Alasdair Mackenzie, and the Secretary of State was represented by Mr Jack Holborn. I am grateful to both counsel for their concise submissions.

B. PRELIMINARY MATTERS

At the time when the decision was taken and at the time when the claim was brought, the Claimant was eight years old; he is now nine years old. In the claim form, the Claimant sought an order for anonymity on the ground that he is a child. Permission to apply for judicial review was granted by an order of Bright J dated 27 September 2024, but the order was silent on the application for anonymity, and therefore Mr Mackenzie renewed the application orally at the substantive hearing. In support of his application, he drew particular attention to the Claimant's young age and to the fact that he and his family had had to be relocated from the south east of England to Scotland because his mother had been the victim of domestic violence. Having investigated the matter at my request, Mr Mackenzie and Mr Holborn were able to assure me that, insofar as they and their instructing solicitors were able to ascertain, there has to date been no publication of the Claimant's identity (including in the Court's published hearing list).

I recognised that a grant of anonymity would constitute a departure from the important constitutional principle of open justice, to which significant weight must be attached: see the guidance set out in the judgment of Nicklin J in PMC v A Local Health Board [2024] EWHC 2969 (KB). Nevertheless, bearing in mind the context of domestic violence, I considered that it was necessary and proportionate to grant anonymity in order to protect the Claimant's interests. Accordingly, at the hearing I directed that, under s 39 of the Children and Young Persons Act 1933, there must be no reporting of the Claimant's identity or of any other information that may lead to him being identified. In these proceedings, the Claimant shall be referred to by the initials “CPH”, and his mother shall be referred to by the initials “DPH”.

Prior to the hearing, the Claimant sought a direction that the hearing be conducted as a hybrid hearing so that his mother (who acts as his litigation friend) could attend remotely via cloud video platform. The Claimant relied on the fact that travelling from Scotland to London for the hearing would place a considerable burden on his mother, who had caring responsibilities for him and his sister. The Secretary of State did not oppose the Claimant's application. Bearing in mind the straitened circumstances of the Claimant's family, I considered that it would be in the interests of justice to permit the Claimant's mother to attend remotely, and I gave a direction to that effect.

In the statement of facts and grounds accompanying the claim for judicial review, the Claimant had quite properly pointed out the fact that he and his family were, at the time when the claim was filed, resident in Scotland, and that this potentially gave rise to an issue as to whether the Administrative Court in England and Wales could or should entertain the claim, or whether any claim should be brought in the Scottish courts. The Claimant contended that the Administrative Court had jurisdiction to entertain the claim,...