CPH, R (on the application of) v Secretary of State for the Home Department [2025] EWHC 848 (Admin)

[2025] EWHC 848 (Admin)

Case No AC-2024-LON-001449

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/04/2025

Before

Jonathan Moffett KC, sitting as a Deputy High Court Judge

Between

CPHClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Alasdair Mackenzie (instructed by Birnberg Peirce Ltd) for Claimant

Jack Holborn (instructed by Government Legal Department) for Defendant

Hearing 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:

[1]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.

[2]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.

[3]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.

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

[5]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.

[6]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.

[7]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.

[8]It may also be of assistance to the reader to provide an index to the topics which this judgment covers.a. A. Introduction: paragraphs 1-9

b. B. Preliminary matters: paragraphs 10-13

c. C. The factual background: paragraphs 14-32

d. 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. E. The issues: paragraphs 80-85

f. 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. 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. 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. 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. J. Summary and remedy: paragraphs 194-199

[9]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

[10]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).

[11]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”.

[12]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.

[13]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, and that it was appropriate for the Court to exercise that jurisdiction. The Secretary of State did not argue to the contrary. It is implicit in Bright J’s decision to grant permission to apply for judicial review that he accepted the Claimant’s contentions as to jurisdiction, and neither party invited me to revisit that issue.

C. THE FACTUAL BACKGROUND

[14]It is a curious feature of this case that neither party adduced any witness evidence in support of his or her case. Nevertheless, I was provided with contemporaneous documentation relating to the Claimant’s dealings with the Secretary of State, and the primary facts are not in dispute.

[15]Although the Secretary of State at the time of the decision was the Rt Hon James Cleverly MP, the current Secretary of State is the Rt Hon Yvette Cooper MP. For simplicity, in this judgment I shall use the pronoun “she”, and the possessive adjective “her”, in relation to the Secretary of State throughout.

[16]The Claimant’s mother, who is a Kenyan national, arrived in the United Kingdom in 2007. She subsequently began a relationship with the Claimant’s father. The Claimant’s sister was born in 2012, and the Claimant was born in 2015. Both children were born in the United Kingdom, but neither is a British citizen; each is a Kenyan national. As I have already mentioned, the Claimant was eight years old at the time of the decision, and he is now nine years old.

[17]I understand that, in September 2020, the Claimant’s sister applied for limited leave to remain (often referred to as “LTR”) on the basis that she had been living in the United Kingdom since birth and for more than 7 years. That application was granted in June 2021, when the Secretary of State granted the Claimant’s sister limited leave to remain for 30 months.

[18]In August 2021, the Claimant and his mother and father submitted an application seeking to have the fees for applications for limited leave to remain waived. That application was granted by the Secretary of State in October 2021. Neither the application, nor the decision on it, was included in the evidence before the Court, but I understand that the application was granted on the basis that the Secretary of State accepted that the Claimant and his mother and father were unable to pay the relevant fees.

[19]On 19 October 2021, the Claimant’s mother submitted an application for limited leave to remain under the private life route provided for by the Immigration Rules, and for limited leave to remain for the Claimant and the Claimant’s father as her dependents. In line with the fee waiver which had already been granted, no fee was paid for the application.

[20]On 20 June 2022, Appendix PL, which was a new appendix to the Immigration Rules, came into effect. I set out the terms of Appendix PL below; for present purposes it suffices to note that it provides for a child who was born in the United Kingdom, and who has lived continuously in the United Kingdom since birth and for at least seven years, to be granted ILR. As I explain below, in order to make a valid application for ILR under Appendix PL, it is necessary to pay a fee.

[21]In light of the introduction of Appendix PL, on 27 October 2022, the Claimant’s solicitors, Birnberg Peirce, wrote to the Secretary of State, seeking to vary the Claimant’s application for limited leave to remain as a dependent of his mother to an application for ILR. Birnberg Peirce acknowledged that the Claimant was unable to satisfy the requirement laid down by Appendix PL to pay the relevant fee for the application. At that time, the relevant fee was £2,404.

[22]It is common ground that, when the Claimant made his application for ILR in October 2022, he had insufficient readily available funds available to pay the fee for an application under Appendix PL, and his mother had limited financial resources and she was not reasonably able to raise the funds necessary to pay the fee (although Mr Holborn emphasised that, insofar as acceptance of this entailed any concession by the Secretary of State, that concession was made for purposes of the decision and the present claim only).

[23]In their letter of 27 October 2024, Birnberg Peirce argued that either the Secretary of State had a discretion to waive the fee or, if not, the requirement to pay the fee was unlawful, because it was contrary to the s 55 duty, and it would be contrary to the Claimant’s best interests not to grant him ILR. Birnberg Peirce also argued that a refusal to grant ILR would be incompatible with the Claimant’s rights under Article 8. They contended that, if the Secretary of State were unwilling to waive the procedural requirements imposed by Appendix PL, she should nevertheless exercise her discretion to grant ILR outside the Immigration Rules.

[24]On 3 November 2022, the Secretary of State granted each of the Claimant, his mother, and his father limited leave to remain in the United Kingdom for a period of 30 months on the family route. As matters currently stand, the Claimant remains on this limited leave to remain (as do his mother and father), which is due to expire on 3 May 2025. In each case, the Secretary of State decided not to apply what is often referred to as a “no recourse to public funds” (or “NRPF”) condition to the grant of leave to remain. As a result, each of the Claimant, his mother and his father has been entitled to access publicly-funded benefits and services.

[25]The decision letter which was sent to the Claimant on 3 November 2022 did not address the application for ILR that had been made in Birnberg Peirce’s letter of 27 October 2022. As a result, Birnberg Peirce sent a letter before claim pursuant to the Pre-Action Protocol for Judicial Review, threatening a challenge to the Secretary of State’s failure to grant ILR to the Claimant and her failure to give any reasons for not granting ILR. The Secretary of State replied substantively on 11 January 2023, stating that she would reconsider the Claimant’s application for ILR in light of the representations made by Birnberg Peirce.

[26]The Secretary of State issued a further decision letter on 8 March 2023. She recognised that the application for ILR had not been addressed in the decision of 3 November 2023, and she went on to address that application. The Secretary of State referred to the Family Policy and, having considered the Claimant’s circumstances, concluded that “it is not accepted that they are sufficiently exceptional or compelling that a grant of ILR is necessary and justified”. The Secretary of State also concluded that a refusal of ILR would not be incompatible with the Claimant’s rights under Article 8. As a result, the Secretary of State maintained her original decision to grant only limited leave to remain. The decision letter of 8 March 2023 did not refer to the s 55 duty, or to the Claimant’s best interests more generally.

[27]The Secretary of State’s letter of 8 March 2023 prompted a further letter before claim from Birnberg Peirce. It appears that the Secretary of State did not reply to that letter and, on 8 June 2023, the Claimant filed a claim for judicial review of the decision of 8 March 2023. The grounds of challenge advanced were similar to those upon which the Claimant now relies in relation to his challenge to the decision.

[28]On 20 July 2023, the Secretary of State agreed to reconsider her decision of 8 March 2023, and proposed a consent order compromising the claim for judicial review. Following some debate as to the terms of that order, in an e-mail sent on 6 September 2023, the Government Legal Department explained that the Secretary of State’s position was that the requirement to pay a fee for an application for ILR under Appendix PL was mandatory, and that she was unable to waive it. However, they also explained that the Secretary of State had a discretion to grant ILR outside the Immigration Rules, without a fee being paid, and that the Secretary of State intended to consider whether to grant ILR to the Claimant on this basis. It was said that, in doing so, the Secretary of State would consider the Claimant’s rights under Article 8 and the s 55 duty. In due course, a consent order, which recorded that the Secretary of State would reconsider the decision of 8 March 2023, was agreed between the parties. The order was approved by the Court on 5 November 2023, and the Claimant’s claim for judicial review was withdrawn.

[29]On 20 December 2023, the Secretary of State wrote to the Claimant stating that his application for ILR was invalid because the relevant fee had not been paid, and requiring that the fee be paid within 10 working days. It seems likely that this letter was sent in error and, although there followed some further skirmishing by way of correspondence between Birnberg Peirce and the Government Legal Department, the decision was eventually issued on 31 January 2024.

[30]The decision began by setting out a brief chronology of the Claimant’s application for ILR. It then quoted paragraphs PL11.1 to PL11.4 of Appendix PL (which I set out below), and noted that the Claimant had not complied with the requirement imposed by paragraph PL11.1 to use the specified form or with the requirement imposed by paragraph PL11.2(a) to pay the relevant fee. As a result, it was said that the Claimant had not made a valid application under Appendix PL, and therefore he could not be granted ILR under Appendix PL.

[31]The decision went on to consider whether the Secretary of State should exercise her discretion to grant ILR outside the Immigration Rules. It is necessary to quote this part of the decision in full (for ease of cross-referencing, I have inserted paragraph numbers). “Consideration of settlement under exceptional circumstances [10] When requests for indefinite leave to remain (ILR) are made in a leave to remain (LTR) application the process is set out in the family guidance on page 73 entitled ‘Longer or shorter periods of leave’ and can be found here: [here the decision provided a hyperlink to the Family Policy] [11] As stated in this guidance there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain under Appendix FM. [12] You submit that you and your parents are unable to afford the application fee of £2404 associated with an ILR application as a child under Appendix Private Life. At the time of your application your family was in receipt of support from Newham Council under section 17 of the Children Act 1989 on the basis that you are at risk of destitution and street homelessness. You claim that it is impossible for the family to save the £2404 fee for your application for ILR. [13] The right to stay indefinitely is one of the most valuable privileges offered for those seeking to enter or remain in the UK, and it is right that the fee should be higher than most for migrants staying temporarily in the UK. There is no fee waiver for an application for ILR, however a grant of ILR is not usually necessary to enable people to remain in the UK on the basis of their Article 8 or other ECHR rights, as these can usually be met through a grant of LTR. The provision of an affordability-based waiver for LTR on family and private life routes allows an individual or family to remain here lawfully, and to then apply for ILR and pay the fee when the funds become available. [14] The decision not to grant you ILR would not lead to significant interference in terms of your family life. You can continue to reside together with your parents and sibling as a family unit. The decision to refuse ILR but grant LTR does not mean you have to leave the UK, or the care of your parents. Whilst it is accepted that there is a lack of ‘permanence’ in a grant of LTR, as opposed to ILR, there is no evidence that you will face any significant practical hardship as a result of having LTR rather than ILR. Further, you and your parents have been granted LTR in the UK with a condition of stay permitting recourse to public funds. Your parents also have the right to work. It is therefore considered that you and your family will have appropriate access to sources of benefits and accommodation as your entitlements permit and are therefore at no significant disadvantage compared to a person with settled status. As a person with LTR in the UK you would also be able to access treatments and services via the NHS as necessary and will not therefore be disadvantaged as a result of having LTR as opposed to ILR. [15] You have also raised alleged discrimination in breach of Article 14 as a reason for exceptionally granting ILR outside of the Immigration Rules. Article 14 of the Human Rights Act 1998 states that, ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’. A person can enjoy their rights to a family or private life with a grant of LTR (for which there is a fee waiver), so the charging of a fee for ILR applications is not an interference with Article 14 as the charge is not a matter within the ambit of Article 8. In any event, the fee for an application is applicable equally to all ILR applications within the same categories. Our ILR fees apply to all applicants and are consistent within the same type of application, ensuring there is a consistent fee to all applicants. There is not direct discriminatory effect. [16] If and to the extent there is some indirect discriminatory effect on the basis of a characteristic to which Article 14 might apply (which is not accepted), that discrimination is reasonably justifiable for the reasons set out above in respect of Article 8. [17] Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State for the Home Department to ensure that due regard is paid to the need to safeguard and promote the welfare of children in the UK when exercising immigration and nationality functions. [18] It is generally accepted that the best interests of a child are to remain with their parent/s. The refusal to grant ILR does not prevent your family remaining together and there is no immediate prospect of removal. Whilst it is accepted that there is a lack of ‘permanence’ in a grant of LTR, as opposed to ILR, there is no evidence that you will face any significant practical hardship as a result of having LTR rather than ILR – for the reasons expressed above in relation to Article 8. [19] You are currently 9 years old and whilst it is considered you may not understand the precarious nature of your immigration status it is understandable that your parents consider it is in your best interests to have ILR. However, settlement is a possibility for you in the future when the funds become available and that should provide you and your family with some security regarding your immigration status. If your family do not have sufficient funds in the future to pay the fee for your ILR application, they have the option of making a further LTR application (for which there is a fee waiver). [20] As such, it is not considered that any best interests considerations alter the outcome in this case, or that there are generally any exceptional circumstances justifying a grant of ILR outside of the Immigration Rules. Summary [21] The Secretary of State has reviewed the decision to grant you LTR in the UK and is satisfied that that it is correct. We have carefully considered your Article 8 rights and is satisfied that there would be no breach of your Article 8 or Article 14 rights under the European Convention on Human Rights and the decision is in accordance with our Section 55 duties. For the reasons detailed above, it is not considered that a grant of ILR is appropriate in your case and the decision to grant a period of 30 months LTR is maintained.”

[32]On 7 March 2024, Birnberg Peirce sent a letter before claim threatening a challenge to the decision, to which the Secretary of State replied on 4 April 2024. The claim was filed on 29 April 2024 and, as I have already explained, permission to apply for judicial review was granted by Bright J on 27 September 2024. D. THE LEGISLATIVE AND POLICY CONTEXT (1). Introduction

[33]The legislative and policy context within which the decision was taken comprises a number of interlocking parts, including primary legislation, delegated legislation, the Immigration Rules, and policy. (2). The power to grant leave to remain

[34]The starting point is the Immigration Act 1971 (“the 1971 Act”). Under s 1(2) of the 1971 Act, an individual (such as the Claimant) who does not have the right of abode in the United Kingdom may live, work and settle here only by permission and subject to such regulation and control as is imposed by the Act.

[35]Under s 3(1)(b) of the 1971 Act, an individual who is not a British citizen may be granted leave to enter the United Kingdom or, if he or she is already in the United Kingdom, he or she may be given leave to remain, either for a limited or for an indefinite period. ILR (sometimes also referred to as “settlement”) is a grant of leave to remain for an indefinite period (see s 33(1)). Under s 4(1) of the 1971 Act, the power to grant leave to remain (whether limited or unlimited) is to be exercised by the Secretary of State (although, pursuant to the Carltona principle, the power may be exercised by the Secretary of State’s officials acting in her stead). Under s 3(1)(c), a grant of limited leave to enter or limited leave to remain may be subject to conditions, including for example a condition restricting the individual’s right to work or requiring the individual to maintain and accommodate himself or herself without recourse to public funds. There is no power to impose conditions on a grant of ILR.

[36]It is uncontroversial that the Secretary of State has a power to grant ILR “outside the rules”, i.e. she may grant ILR even if the requirements laid down by the Immigration Rules in relation to the grant of ILR are not met (see R (Munir) v Secretary of State for the Home Department

[2012] UKSC 32

[2012] 1 WLR 2192

, paragraph 44 per Lord Dyson JSC).

[37]The parties are agreed that, in the present case, the only concrete difference between the limited leave to remain from which the Claimant currently benefits, and the ILR which he sought, is the fact that the Claimant will be required to make an application to extend his limited leave to remain whenever it is due to expire, potentially repeatedly, and he might face practical difficulties if the application is not determined before his limited leave to remain expires (difficulties of the kind identified by Holman J in R (SM) v Secretary of State for the Home Department

[2013] EWHC 1144 (Admin)

, paragraph 51). In contrast, no such applications would be necessary if the Claimant were to be granted ILR. Because the Secretary of State decided not to apply a “no recourse to public funds” condition to the Claimant’s limited leave to remain, a grant of ILR would not confer on the Claimant any additional concrete advantages in terms of access to public services such as welfare benefits. (3). The requirement to charge a fee for an application for ILR

[38]Under s 68(1) of the Immigration Act 2014 (“the 2014 Act”), the Secretary of State has a power to provide for fees to be charged in respect of the exercise of functions in connection with immigration or nationality. Under s 68(2) to (6), the functions in respect of which fees are to be charged are to be specified by the Secretary of State by order, and such an order must specify how the fee in respect of each specified function is to be calculated. Where the order provides that a fee is to be a fixed amount, the order must specify the maximum amount at which that fee may be set. Under s 74(2), an order pursuant to s 68 may be made only if a draft of it has been approved by a resolution of each House of Parliament.

[39]The Secretary of State has made the Immigration and Nationality (Fees) Order 2016 (SI 2016 No 177) (“the Fees Order”) under s 68(2) to (6) of the 2014 Act. Article 3(1) of the Fees Order provides that the Secretary of State “must” charge the fee specified in regulations in respect of the exercise of the functions which are specified in the Fees Order. Under art 5(1), a fee is to be charged for the consideration of an application for leave to remain in the United Kingdom of a type specified in Table 2, and under art 5(2) the maximum amount which may be charged is also specified in Table 2. Line 2.6 of Table 2 specifies an application for ILR. As at 27 October 2022, when the Claimant made his application for ILR, the maximum fee specified in respect of an application for ILR was £3,250 (the maximum fee is currently specified as £3,600).

[40]Under s 68(7) of the 2014 Act, where a fee is to be a fixed amount, the amount is to be fixed by regulations. Under s 68(8), the amount must not exceed the maximum specified in the Fees Order, but it may exceed the costs of exercising the relevant function. Under s 68(9), when setting the amount of a fee, the Secretary of State may have regard only to:(a) the costs of exercising the relevant function,

(b) benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function,

(d) the promotion of economic growth,

(e) fees charged by or on behalf of governments of other countries in respect of comparable functions, and

(f) any international agreement. Under s 68(10), regulations made under s 68(7) may provide for exceptions and for the reduction, waiver or refund of part or all of a fee.

[41]The Secretary of State has made the Immigration and Nationality (Fees) Regulations 2018 (SI 2018 No 330) under s 68(7), (8) and (10) of the 2014 Act (“the Fees Regulations”). Regulation 4 provides that Schedule 2 to the Regulations lays down the amounts of the fees for applications for leave to remain specified by art 5 of the Fees Order, the exceptions to the requirement to pay such fees, and the circumstances in which such fees may be waived or reduced.

[42]Paragraph 2(3) of Schedule 2 to the Fees Regulations provides that Table 8 specifies the amount of the fee for an application for ILR, and paragraph 2(4) provides that Table 9 provides for exceptions to and potential waivers of the requirement to pay certain fees specified in Table 8. At the time when the Claimant made his application for ILR, line 8.1.1 of Table 8 provided that the fee for an application for ILR was £2,404 (it is currently £2,885). Table 9 makes provision for various exceptions to and potential waivers of the requirement to pay a fee for an application for ILR (for example, line 9.6 provides that no fee is payable by a person who is a child who is being looked after by a local authority), but none applied in the Claimant’s case.

[43]In this context, Mr Mackenzie drew my attention to line 9.4 of Table 9, which provides that, in relation to an application for limited leave to remain under Appendix PL (and certain other applications), no fee is payable if requiring the fee to be paid would be incompatible with the applicant’s Convention rights. Mr Mackenzie pointed out that the Fees Regulations do not provide for a similar exception in relation to an application for ILR under Appendix PL.

[44]Regulation 16(1) provides that, where a person is required to pay a fee for an application, but fails to do so, the Secretary of State may(a) reject the application as invalid, or

(b) request the person to pay the outstanding amount. In the latter case, regulation 16(2) provides that the outstanding amount must be paid within 10 working days and, if it is not, the Secretary of State must reject the application as invalid.

[45]The parties are agreed that, although reg 16(1) uses the ostensibly permissive language of “may”, it does not confer a general discretion on the Secretary of State which would, for example, empower her to waive a fee in circumstances other than those laid down by the Fees Regulations. Rather, the parties agree that reg 16(1) requires the Secretary of State to choose between one of the two options presented. In view of the mandatory requirement imposed by reg 16(2) to reject an application as invalid in a case in which the fee is not paid within the extended period provided for, I consider that the parties’ interpretation of reg 16 is correct.

[46]Accordingly, the parties agree that the combined effect of the Fees Order and the Fees Regulations is that the Secretary of State has a duty to charge the prescribed fee for an application for ILR made under Appendix PL; there is no provision for an exception to that requirement, and the Secretary of State has no discretion to waive the fee. This accords with the position set out in the Government Legal Department’s e-mail of 6 September 2023, to which I have referred above.

[47]Before I leave the Fees Order and the Fees Regulations, I should record that art 2 of the former and reg 2 of the latter each defines “leave to remain in the United Kingdom” as “leave to remain in the United Kingdom given in accordance with the provisions of the 1971 Act or the immigration rules” (emphasis added). On face of it, therefore, where the Fees Order and the Fees Regulations refer to an application for ILR, they are referring to such an application whether it is for ILR under the Immigration Rules or outside the rules. If that were correct, it would appear that the Secretary of State’s duty to charge a fee would apply to an application for a grant of ILR outside the rules as it applies to an application for a grant of ILR under the Immigration Rules.

[48]However, at all material times both parties have proceeded on the basis that the Secretary of State was entitled to consider whether to grant ILR to the Claimant outside the rules, regardless of the fact that the Claimant had not paid a fee, and this remained their position at the hearing. In this respect, Mr Holborn makes the general point that the requirement to pay a fee imposed by the Fees Order and the Fees Regulations attaches to the making of an application for ILR, and no fee is chargeable for a grant of ILR. Mr Holborn submitted that it is therefore open to the Secretary of State to grant ILR irrespective of whether a fee has been paid, and Mr Mackenzie does not demur. The point which I have mentioned above was not one which was canvassed in argument, and I am not in a position to express any concluded view on it, and therefore I shall proceed on the same basis as the parties. (4). The Immigration Rules and Appendix PL

[49]Section 3(2) of the 1971 Act requires the Secretary of State to lay before Parliament a statement of the rules laid down by her as to the practice to be followed for regulating the stay in the United Kingdom of persons required by the 1971 Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. In this respect, the relevant rules are the Immigration Rules. The Immigration Rules are subject to a negative resolution procedure before each House of Parliament.

[50]That part of the Immigration Rules which is relevant in the Claimant’s case is Appendix PL. The introduction to Appendix PL provides as follows. “Immigration Rules Appendix Private Life The Private Life route is for a person seeking permission to stay in the UK on the basis they have developed a Private Life in the UK. … The Private Life route is a route to settlement. A child born in the UK who has been continuously resident for 7 years may qualify for immediate settlement on this route. Alternative routes may be available to those considering the Private Life route. For example, a person may be able to qualify for immediate settlement on the basis of 10 years Long Residence in the UK, under Appendix Long Residence of these rules.”

[51]The validity requirements which apply to an application for ILR under Appendix PL are set out in paragraphs PL11.1 to PL11.4. Insofar as is relevant, those paragraphs provide as follows. “Validity requirements for settlement on the Private Life route PL 11.1. A person on the Private Life route who is applying for settlement must apply online on the gov.uk website on the specified form as follows: … Child (aged under 18) Settlement as a child (including a child aged over 18 already in the UK as a dependent) PL 11.2. An application for settlement must meet all the following requirements:(a) any fee must have been paid; and

(b) the applicant must have provided biometrics when required; and

(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application. PL 11.3. An applicant must have, or have last been granted, permission on the Private Life route, unless they are a child who was born in the UK. PL 11.4. An application which does not meet all the validity requirements for settlement on the Private Life route may be rejected as invalid and not considered.” … Child (aged under 18) Settlement as a child (including a child aged over 18 already in the UK as a dependent) (a) any fee must have been paid; and (b) the applicant must have provided biometrics when required; and (c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and (d) the applicant must be in the UK on the date of application.

[52]It is common ground that, for the purposes of the decision and the present claim for judicial review, the Claimant’s inability to pay the fee was the only reason why he was unable to make a valid application for ILR under Appendix PL. I have explained above that the Secretary of State rejected the Claimant’s application for ILR under Appendix PL because it was invalid for two reasons: the Claimant had not used the specified form (as required by paragraph PL11.1), and the Claimant had not paid the requisite fee (as required by the Fees Order and the Fees Regulations, and by paragraph PL11.2(a)). Further, although not mentioned in the decision, it would appear from Birnberg Peirce’s letter of 27 October 2022 that the Claimant was unable to provide a passport or other travel document (as required by paragraph PL11.2(c)). However, the parties’ exclusive focus has been on the requirement to pay a fee, and therefore it is not necessary for me to consider the other validity requirements imposed by Appendix PL.

[53]It will be noted that paragraph PL11.4 states that an application “may” be rejected if it does not meet all of the validity requirements. In their letter of 27 October 2022, Birnberg Peirce argued that paragraph PL11.4 therefore conferred on the Secretary of State a discretion to consider an application for ILR under Appendix PL even if the requisite fee was not paid. However, before me, Mr Mackenzie confirmed that he does not advance a similar argument, a position which accords with the parties’ consensus on the effect of reg 16(1) of the Fees Regulations.

[54]Paragraphs PL18.1 to PL18.5 of Appendix PL explain when ILR will and will not be granted under Appendix PL. Insofar as is relevant, those paragraphs provide as follows. “Decision on an application for settlement on the Private Life route PL 18.1. If the decision maker is satisfied the suitability and eligibility requirements for settlement on the Private Life route are met the applicant will be granted settlement. PL 18.2. If the requirements for settlement are not met, but the decision maker believes the applicant is likely to meet all the suitability and eligibility requirements for permission to stay on the private life route the application will be varied by the Secretary of State to an application for permission to stay on the private life route…. … PL 18.5. If the decision maker is not satisfied that the applicant meets all the suitability and eligibility requirements for settlement or permission to stay the application for settlement on the Private Life route will be refused.”

[55]For present purposes it is not necessary to rehearse the suitability requirements referred to in those paragraphs, which are set out in paragraphs PL12. to PL12.7 of Appendix PL. The relevant eligibility requirements are set out in paragraph PL13.1 to PL13.3, as follows. “Eligibility requirements for settlement on the private life route Child born in the UK requirements for settlement on the Private life route PL 13.1. The applicant must have been born in the UK and must provide a full UK birth certificate. PL 13.2. The applicant must have lived continuously in the UK since their birth and for at least 7 years at the date of application. PL 13.3. The decision maker must be satisfied that it is not reasonable to expect the applicant to leave the UK.”

Child born in the UK requirements for settlement on the Private life route

[56]Again, it is common ground that, for the purposes of the decision and the present claim for judicial review, on the information available it appeared that the Claimant satisfied those eligibility requirements (although Mr Holborn emphasised that, because the Secretary of State had not substantively determined an application under Appendix PL, she had not reached any final conclusions on these matters).

[57]Mr Mackenzie drew attention to the fact that the provision for a child to be granted ILR under Appendix PL envisages that a child could be granted ILR immediately, without having to serve a so-called “probationary period” on limited to leave to remain, as is required in the context of other routes to ILR under the Immigration Rules. The Explanatory Memorandum which accompanied the relevant statement of changes to the Immigration Rules explained that Appendix PL “introduces a number of changes for children and young people, including bringing the concession on early settlement, introduced on 20 October 2021, into the rules” (see paragraph 2.3), and that (paragraph 7.34): “A child born in the UK who has lived in the UK continuously for 7 years can qualify for immediate settlement. Such a child may be eligible for citizenship at 10 years old, so the change will support their journey to citizenship….” (5). The Family Policy

[58]The version of the Family Policy which is currently in force is that which was issued by the Secretary of State to Home Office decision-makers on 17 May 2024. That version, which was the version provided to the Court for the purpose of the substantive hearing, post-dates the decision. However, I was assured by counsel that there are no material differences between the current version of the Family Policy and the version which was in force at the time of the decision, and therefore I shall refer to current version.

[59]The Family Policy explains that “[t]his guidance tells decision makers how to decide applications or claims for leave to enter or remain on the basis of family life as a partner or parent or exceptional circumstances in compliance with Article 8…” (page 6). The introduction to the Family Policy goes on to refer to Appendix FM to the Immigration Rules (“Appendix FM”), which provides for the grant of leave to enter or remain as a family member, and to Appendix PL, and states as follows (see pages 8-9):

“These rules, together with the guidance on exceptional circumstances and children’s best interests contained within it, provide a clear basis for considering immigration cases in compliance with ECHR Article 8…. … The rules also take into account the need to safeguard and promote the welfare of children. The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child in the UK, together with Article 3 of the UN Convention on the Rights of the Child, means that consideration of the child’s best interests must be a primary consideration in immigration decisions affecting them. This guidance and the Immigration Rules it covers form part of the arrangements for ensuring that we give practical effect to these obligations.”

[60]The Family Policy gives extensive guidance to Home Office decision-makers as to how they should approach applications under Appendix FM, although it also cross-refers to Appendix PL. Pages 59 to 71 of the Family Policy comprise a section on “exceptional circumstances”, which addresses what are referred to as “Article 8 exceptional circumstances”. I was referred to the part of the exceptional circumstances section which discusses the 55 duty but, in order properly to understand that discussion, it seems to me that it is necessary to consider the earlier part of the section on exceptional circumstances.

[61]The introduction to the section on exceptional circumstances (pages 59-60) explains that the section gives guidance on the situations for which paragraphs GEN3.1 to GEN3.3 of Appendix FM provide, i.e. in broad terms, the situations in which an application for leave to enter or leave to remain falls to be refused under the primary provisions of Appendix FM (including where the applicant is unable to demonstrate in accordance with the relevant evidential requirements that he or she meets the minimum income requirements laid down by Appendix FM), but there are exceptional circumstances which mean that the refusal of the application could result in unjustifiably harsh consequences for the applicant, his or her partner, or a relevant child. In such situations, the decision-maker is to consider whether refusal of the application could breach Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child (taking into account, as a primary consideration, the best interests of any relevant child affected by the decision). Paragraph GEN 3.3 of Appendix FM expressly provides that, when considering an application under paragraphs GEN 3.1 or GEN3.2, the decision-maker must take into account, as a primary consideration, the best interests of a “relevant child”. A relevant child is defined as a person who is under 18 at the date of the application and who the information provided by the applicant shows would be affected by a decision to refuse the application. The Family Policy also advises decision-makers that these matters are to be considered within the framework of Appendix FM (pages 59-60).

[62]The Family Policy explains what will constitute “exceptional circumstances” and “unjustifiably harsh consequences” (pages 62-64), and in that context explains that the best interests of a relevant child are a relevant factor which a decision-maker must take into account as a primary consideration when determining whether there are exceptional circumstances which mean that refusal of the application could or would result in unjustifiably harsh consequences (pages 61, 64-65). It is apparent from the nature of the other relevant factors which are specified as factors which a decision-maker must take into account that the consideration of exceptional circumstances is primarily directed at cases in which the refusal of leave to enter or remain would result in the unsuccessful applicant, and potentially his or her family, having to leave the United Kingdom (pages 64-65).

[63]The section on exceptional circumstances goes on to give guidance in relation to the best interests of a relevant child (pages 68-70). In particular, it states that (pages 68-69): “Where making any decision which may affect the welfare of a child, but in particular where considering:• under paragraph GEN.3.1. of Appendix FM, whether refusal of an application for entry clearance or leave to remain as a partner or child which does not meet the minimum income requirement could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child

• under paragraph GEN.3.2. of Appendix FM, whether refusal of an application for entry clearance or leave to remain under Appendix FM – which does not otherwise meet the requirements of that Appendix or Part 9 (general grounds for refusal) – would result in unjustifiably harsh consequences for the applicant or their family You must take into account, as a primary consideration, the best interests of any ‘relevant child’.”

• under paragraph GEN.3.1. of Appendix FM, whether refusal of an application for entry clearance or leave to remain as a partner or child which does not meet the minimum income requirement could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child

[64]The Family Policy explains how decision-makers should take into account the best interests of a relevant child in the following terms. “In considering the best interests of a relevant child as a primary consideration within the Article 8 decision-making process, what matters is the substance of the attention given to the overall well-being of the child. That must be given distinct consideration, not simply regarded as an adjunct of the family life of their parent or parents. … The assessment of a child’s best interests requires a consideration of all relevant factors in the particular case. … The child’s best interests, taken into account as a primary consideration, must constitute substantive and compelling factors for entry clearance to be granted following consideration under paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, where the requirements of the Immigration Rules are not otherwise met.”

[65]The Family Policy sets out a non-exhaustive list of factors which are likely to be relevant when considering the best interests of a relevant child. As Mr Mackenzie observed, many of those factors are likely to be relevant only a case in which refusal of the application would result in the child, or his or her parent, being refused entry to or being required to leave the United Kingdom.

[66]In my view, when it is considered in its context, those parts of the Family Policy which give guidance in relation to the best interests of a relevant child provide guidance to decision-makers on assessing whether the “exceptional circumstances” and “unjustifiably harsh consequences” tests laid down by paragraphs GEN3.1 and GEN3.2 of Appendix FM are met, in accordance with the requirement to consider the best interests of a relevant child which is imposed by paragraph GEN3.3.

[67]The Family Policy includes a separate section on “longer or shorter periods of leave” (pages 74-75). This section addresses the discretion to grant leave outside the Immigration Rules and, for convenience, I shall refer to it as “the discretion guidance”. The discretion guidance sets out the policy which was applied in the Claimant’s case, and therefore it is necessary to rehearse it in full (for ease of cross-referencing, I have added paragraph numbers). “Longer or shorter periods of leave [1] Settlement in the UK is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain (ILR). [2] However, there may be rare cases in which either a longer period of leave or an early grant of ILR is considered appropriate, because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or ILR). [3] If the applicant specifically requests a longer period of leave than 30 months, or ILR, and provides reasons as to why they think a longer period of leave or ILR is appropriate in their case, you must consider this and set out in any decision letter why a grant of more than 30 months or ILR has not been made. [4] There is discretion to grant a longer period of leave or ILR outside the rules where there are other particularly exceptional or compelling reasons to do so. There must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain under Appendix FM. [5] In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons. [6] If you decide that the case is not sufficiently exceptional or compelling, they should grant 30 months’ leave to remain, and explain in the decision letter why this has been granted instead of the length of leave requested. [7] If the applicant does not make a request for a longer than standard period of leave, or if they make a request without providing any reasons for why a longer grant of leave is appropriate, you should grant 30 months’ leave to remain. [8] In some cases, there may be exceptional circumstances that mean it may be appropriate to grant leave on a short-term temporary basis to enable particular issues relating to the person to be addressed before they leave the UK. For example, a short period of stay to enable them to complete exams that are critical to a defined stage of education or to enable a specific treatment to be completed in order to enable the person to travel. If the grant of leave is being made on a short-term temporary basis, a shorter period of leave should be granted, appropriate to the circumstances of the case. [9] Reasons to grant ILR early, are likely to be easily identifiable on their individual facts, for example, where it is considered that the precariousness of limited leave would create such serious distress as to have a disproportionately detrimental effect on the person’s health or welfare that it would prevent recovery or development. The threshold is high and concerns the direct effect on the person concerned. [10] An example of where it would not normally be appropriate to grant ILR might be because the person would like to qualify for a student loan to go to university and isn’t currently eligible. This would not normally be regarded as sufficiently exceptional or compelling circumstances, absent additional factors. [11] Where granting a non-standard period of limited leave to the applicant, because it is accepted that there are exceptional reasons for doing so, this leave will have to be granted outside the Immigration Rules as there is no provision within Appendix FM for granting limited leave for a period of more than 30 months. This also applies to ILR, where this is granted outside of a valid ILR application or where the requirements of the rules are not met. If there are exceptional reasons to grant ILR, this should be granted outside the rules.”

[68]After the hearing, it came to my attention that, in addition to the Family Policy, the Secretary of State has issued three guidance documents which might have been relevant in the context of the Claimant’s application: Validation, variation, voiding and withdrawal of applications; Settlement: family and private life;and Private Life. Neither party referred to these documents in writing or in their oral submissions, and I shall say no more about them. (6). The s 55 duty

[69]Insofar as is relevant, s 55 of the 2009 Act provides as follows. “55 Duty regarding the welfare of children(1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom… …

(2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality; …

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1). … (6) In this section— ‘children’ means persons who are under the age of 18; …” (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom… … (a) any function of the Secretary of State in relation to immigration, asylum or nationality; … ‘children’ means persons who are under the age of 18; …”

[70]On its face, s 55 of the 2009 Act imposes what might be characterised as a high-level organisational duty, in that it imposes on the Secretary of State a duty to “make arrangements” for ensuring that her functions are discharged in a particular way. However, as in previous cases (see, for example, ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

, para 24 per Baroness Hale JSC, and R (MM (Lebanon)) v Secretary of State for the Home Department

[2017] UKSC 10

[2017] 1 WLR 771

, para 46 per Baroness Hale DPSC and Lord Carnwath JSC), it was common ground that s 55 also imposes a duty where the Secretary of State, or one of her officials, takes a decision in a particular case.

[71]There is a large measure of agreement as to what the s 55 duty requires in the context of a particular case. In particular, Mr Mackenzie and Mr Holborn agree that, when a decision-maker takes a decision which is likely to affect a particular child, the decision-maker must take into account the best interests of the child as a primary consideration.

[72]Both parties referred me to R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department

[2021] EWCA Civ 193

[2021] 1 WLR 3049

(“PRCBC”). PRCBC involved a challenge to the provisions of the Fees Regulations which provided for a fee to be charged for an application for citizenship by a child. At first instance, Jay J held that the Secretary of State had not complied with the s 55 duty when making the relevant provisions of the Fees Regulations, because there was insufficient evidence that the Secretary of State had considered the best interests of children when making those provisions. Accordingly, PRCBC was concerned with the question whether the Secretary of State had properly taken into account the best interests of children when making the relevant provisions of the Fees Regulations. The Court of Appeal dismissed an appeal against that part of Jay J’s decision. David Richards LJ (with whom Singh and Nicola Davies LJJ agreed) set out a helpful general summary of the relevant Supreme Court authorities on the s 55 duty (see paragraph 70):

“(i) Section 55 was enacted to give effect in domestic law, as regards immigration and nationality, to the UK’s international obligations under article 3 of the 1989 United Nations Convention on the Rights of the Child (‘UNCRC’). The UK is a party to the UNCRC and in 2008 withdrew its reservation in respect of nationality and immigration matters. Article 3 provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ Although section 55 uses different language, it is conventional and convenient to refer to a duty under section 55 as being to have regard, as a primary consideration, to the best interests of the child. (ii) The duty is imposed on the Secretary of State. She is bound by it, save to the extent (if any) that primary legislation qualifies it; we were not referred to any qualifying legislation. (iii) The duty applies not only to the making of decisions in individual cases but also to the function of making subordinate legislation and rules (such as the Immigration Rules) and giving guidance. The fact that subordinate legislation or rules are subject to the affirmative vote of either or both Houses of Parliament does not qualify the Secretary of State’s statutory duty under section 55. (iv) The best interests of the child are a primary consideration, not the primary consideration, still less the paramount consideration or a trump card. This does, however, mean that no other consideration is inherently more significant than the best interests of the child. The question to be addressed, if the best interests point to one conclusion, is whether the force of other considerations outweigh it. (v) This in turns means that Secretary of State must identify and consider the best interests of the child or, in a case such as the present, of children more generally and must weigh those interests against countervailing considerations.”

[73]In paragraphs 72 and 73 of the PRCBC case, David Richards LJ quoted with approval from the judgment of Jay J at first instance. Insofar as is relevant, the passage quoted is as follows (see

[2019] EWHC 3536 (Admin)

[2020] 1 WLR 1486

, para 96 per Jay J):

“…it is not incumbent on the court to conduct the balancing exercise for itself or to become entangled in the merits. The court must be satisfied that the correct factors have been identified by the Secretary of State and then assessed…. The court must also be satisfied in connection with the best interests of the child that the decision-maker described with reasonable accuracy what those interest are, and has treated them as a primary consideration.”

[74]Mr Mackenzie also referred me to Zoumbas v Secretary of State for the Home Department

[2013] UKSC 74

[2013] 1 WLR 3690

. That case, on which David Richards LJ drew for his summary in the PRCBC case, involved a challenge to a case-specific decision that it would not be incompatible with the claimant’s rights under Article 8 to return him to the Republic of Congo. Accordingly, the primary focus was on the requirements of Article 8. However, the claimant also argued that, because the Secretary of State had not had regard to the interests of his children as a primary consideration when undertaking the proportionality assessment for the purposes of Article 8, the Secretary of State had breached the s 55 duty (see paragraph 3 per Lord Hodge JSC for the Supreme Court). In that context, the Supreme Court recorded that seven principles were not in dispute between the parties (see paragraph 10):

“(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR; (2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration; (3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and (7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.”

[75]In paragraph 13 of Zoumbas, the Supreme Court went on to observe that in some cases a child’s best interests might point only marginally towards a particular decision, and that there may be cases in which the balance tips in favour of a decision which has very severe consequences for the child.

[76]The Secretary of State has issued guidance on the s 55 duty, under s 55(3) of the 2009 Act, Every Child Matters: Change for Children (November 2009). I was told that this guidance does not touch on the issue of fees, but Mr Mackenzie drew my attention to paragraph 2.20, which falls under the heading “work with individual children”. Paragraph 2.20 states that:

“There should also be recognition that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them.”

[77]For completeness, I should record that s 71 of the 2014 Act provides that “[f]or the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children)”. Both parties agree that this provision does not affect the analysis of what s 55 required in the present case in any material way, although it seems to me that it has the effect that, notwithstanding the restrictive wording of s 68(9) of the 2014 Act, the Secretary of State must comply with the s 55 duty when making regulations which fix the level of any fees. (7). Convention rights

[78]Under s 6(1) of the Human Rights Act 1998 (“the 1998 Act”), it is unlawful for a public authority such as the Secretary of State to act in a way which is incompatible with a Convention right. In the present case, two such Convention Rights are in play, Articles 8 and 14. Those Convention rights are set out in Schedule 1 to the 1998 Act, as follows. “Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” “Article 14 Prohibition of discrimination 88. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” (8). Waiver of fees for citizenship applications

[79]Mr Mackenzie contrasted the position in relation to fees for applications for ILR under Appendix PL with the position in relation to fees for applications for citizenship. In particular, he pointed out that, as a result of the PRCBC case, the Secretary of State has made provision for the waiver of the fee for applications for citizenship (see the Fees Regulations, reg 10 and Sch 8, paras 2 and 8). In this respect, he drew my attention to the Secretary of State’s policy, Affordability fee waiver: Citizenship registration for individuals under the age of 18 (3 October 2023), the summary section of which states as follows. “A fee waiver must be granted if the applicant and parent or parents are assessed and found:• to credibly demonstrate they cannot afford the fee

• that their income is not sufficient to meet the child’s needs The primary consideration on whether someone is eligible for a fee waiver is an affordability test to assess whether the applicant and parent or parents have credibly demonstrated that they cannot afford the fee. This applies when the applicant and parent or parents do not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee. Fee waivers should be granted if the applicant and parent or parents have credibly demonstrated that they meet the affordability test. The need to safeguard and promote the welfare of a child in the UK should be a primary consideration in deciding any claim. This means careful consideration needs to be given as to whether the applicant’s needs are being met and whether being required to pay the fee would deprive a child of having these needs met….”

• to credibly demonstrate they cannot afford the fee

• that their income is not sufficient to meet the child’s needs

E. THE ISSUES

[80]The parties helpfully agreed between them a list of issues to be decided, but in view of the course that the oral argument took, it seems to me that I need to decide the following matters, and that it is convenient to take them in the following order.

[81]First, the Claimant’s challenge to the Fees Regulations, Appendix PL and the Family Policy. For convenience, I shall refer to those measures together as “the framework”. As I understand the way in which Mr Mackenzie puts this part of the claim, the Claimant advances an “in principle” challenge to the framework which does not rely on the specific facts of the Claimant’s particular case (cf In re JR123

[2025] UKSC 8

[2025] 2 WLR 435

, paragraph 91 per Lord Sales JSC and Sir Declan Morgan). Mr Mackenzie advances this challenge as what might be characterised as a composite challenge to the entirety of the framework, which does not materially distinguish between the different measures which comprise the framework. In my view, this approach is problematic. Although the courts have on occasion found it necessary to consider the combined effect of, for example, the Immigration Rules and guidance on them, it is important to bear in mind that the question is generally whether a specific measure is unlawful (see R (Woolcock) v Secretary of State for Communities and Local Government

[2018] EWHC 17 (Admin)

[2018] 4 WLR 49

, paras 49, 68, 95 per Hickinbottom LJ). As I shall explain, I consider that different legal analyses are required in relation to the different measures which comprise the framework, and I shall therefore consider the challenge to the various measures in stages.

[82]Approaching this part of the challenge in this way, four main issues arise for consideration.(1) Is any part of the framework unlawful because it breaches or results in breaches of the s 55 duty?

(2) Is any part of the framework unlawful because it is incompatible with Article 8?

(3) Is any part of the framework unlawful because it is incompatible with Article 14 taken together with Article 8?

(4) Is any part of the framework unlawful because it is irrational?

[83]Secondly, the Claimant’s challenge to the decision. In this respect, four main issues again arise for consideration.(1) Did the Secretary of State properly comply with the s 55 duty when taking the decision?

(2) Was the decision incompatible with the Claimant’s Article 8 rights?

(3) Was the decision incompatible with the Claimant’s rights under Article 14 taken together with Article 8?

(4) Was the decision irrational?

[84]I set out my answers to these questions in paragraphs 195 and 196 below.

[85]In oral argument, Mr Mackenzie focused on the challenges based on the s 55 duty; he did not advance detailed submissions in relation to the challenges based on Article 8, Article 14 and irrationality. Mr Holborn’s responses to the latter elements of the claim were correspondingly brief. As a result, I shall likewise focus on the challenges based on the s 55 duty and, in order not unnecessarily to lengthen what is in any event a long judgment, I shall deal with the remaining grounds of challenge relatively shortly. F. THE CHALLENGE TO THE FRAMEWORK BASED ON THE SECTION 55 DUTY (1). Introduction

[86]In broad terms, the Claimant’s s 55 challenge to the framework is to the effect that the framework does not provide for or permit the Secretary of State either to waive the fee for an application by a child for ILR under Appendix PL, or to grant ILR outside the rules, on the ground that it would be in a child’s best interests to do so.

[87]Mr Mackenzie’s starting point is that the best interests of a child are generally more likely to be served by granting ILR than by granting limited leave to remain. In this respect, Mr Mackenzie relies on the concrete advantage of a grant of ILR to which I have referred in paragraph 37 above, and he also relies on what in oral argument came to be referred to as the “soft” advantages of a grant of ILR (terminology which I shall adopt for the purposes of this judgment).

Prohibition of discrimination

[88]In relation to the soft advantages, Mr Mackenzie emphasises the fact that the provision for the grant of ILR to a child which is made by Appendix PL was introduced for, as he put it, a “benign” purpose, in order to “support [children’s] journey to citizenship” (see paragraph 7.34 of the explanatory memorandum), without them having first to serve the usual so-called probationary period on limited leave to remain. Mr Mackenzie also relies on the fact that the Secretary of State herself, in the decision in the Claimant’s case, referred to ILR as “one of the most valuable privileges” (see paragraph 13). In addition, he argues (by reference to SM, paras 21-23 per Holman J) that paragraph 2.20 of Every Child Matters indicates that, in a case in which it is obvious that a child’s long-term future lies in the United Kingdom, a requirement to make successive applications for limited to leave to remain, and the prolonged uncertainty to which that potentially gives rise, serves no useful purpose and is not in the child’s best interests. In this respect, Mr Mackenzie makes the point that any period of uncertainty is likely to be felt more acutely by a child than by an adult, by reason of the fact that a child’s perception of time differs from that of an adult.

[89]Although Mr Holborn is at pains to emphasise the limited concrete advantage which a grant of ILR would confer in the Claimant’s case, and he argues that the soft advantages are limited in the case of a child as young as the Claimant, more generally he does not seek to gainsay Mr Mackenzie’s argument as to where the best interests of a child are likely to lie. I accept that, in many (if not most) cases, a grant of ILR is more likely to serve the best interests of a child than a grant of limited leave to remain, although whether, and the extent to which, a grant of ILR would be in the best interests of a particular child is likely to depend on the specific circumstances of the individual case. This begs the question of what provision, if any, the framework (or any part of it) must itself make for a decision-maker to consider the best interests of a child in a particular case.

[90]Mr Mackenzie argues that the framework must require the Secretary of State to have regard to the best interests of the child when considering whether to grant ILR to that child or, at least, the framework must allow for ILR to be granted where it would be in the best interests of the child to do so. In addition, Mr Mackenzie argues that the framework is unlawful because it purports positively to authorise or approve decision-making in individual cases which does not properly take into account the best interests of the child. In support of the latter argument, Mr Mackenzie argues that the applicable test is that laid down in R (A) v Secretary of State for the Home Department

[2021] UKSC 37

[2021] 1 WLR 3931

, paragraph 38 per Lord Sales JSC and Lord Burnett CJ, where it was held that a public body’s policy as to how it will normally exercise a discretion is unlawful if the policy purports positively to authorise or approve unlawful conduct. For convenience, I shall refer to the test laid down by Lord Sales and Lord Burnett as “the A test”. (2). The challenge to the Fees Regulations

[91]The Claimant’s challenge to the Fees Regulations is to the effect that the s 55 duty requires that they make provision for decision-makers to have regard to the best interests of children as a primary consideration in individual cases, and therefore it is necessary for the Fees Regulations to provide for an exception or a waiver in a case in which the applicant for ILR under Appendix PL is a child (similar to that which is provided for in the context of applications for citizenship). However, at the hearing, Mr Mackenzie did not particularly press the challenge to the Fees Regulations, which barely featured in his oral submissions, and he did not develop any separate arguments in relation to them. Accordingly, I consider that I can deal with this part of the challenge to the framework fairly briefly.

[92]It seems to me that the proposition at the heart of the Claimant’s challenge to the Fees Regulations is that it is unlawful for them to lay down a blanket rule that a fee must be charged, the application of which might result in outcomes in individual cases which are inconsistent with the best interests of children, with no provision for exceptions. In my view, this is tantamount to an argument that the Secretary of State must exercise her power under s 68 of the 2014 Act to make the Fees Regulations in a way which achieves a particular outcome, i.e. the inclusion in the Fees Regulations of provision for an appropriate exception or for a case-specific consideration of individual cases. In this respect, the Claimant’s challenge is materially different to that which was advanced (and succeeded) in PRCBC. In PRCBC, the challenge was to the effect that the Secretary of State had failed to have regard to the best interests of children when making the Fees Regulations, whereas the Claimant does not advance any such challenge to the Fees Regulations (or to any of the other measures which comprise the framework).

[93]Understood in this way, it seems to me that, in order to succeed on this aspect of his challenge to the Fees Regulations, the Claimant would have to make good a conventional ultra vires challenge, i.e. a challenge to the effect that the s 55 duty circumscribes the Secretary of State’s power under s 68 of the 2014 Act to make the Fees Regulations. However, Mr Mackenzie does not advance a conventional ultra vires argument, and he did not advance any submissions as to how the s 55 duty might affect the Secretary of State’s powers under s 68 of the 2014 Act. In particular, he did not advance any argument to the effect that the Fees Regulations were ultra vires because they somehow negated the s 55 duty (for example, by analogy with the principle identified in R (Al-Enein) v Secretary of State for the Home Department

[2019] EWCA Civ 2024

[2020] 1 WLR 1349

, paragraph 28 per Singh LJ).

[94]In his skeleton argument, Mr Mackenzie relied on the A test in the context of the challenge to the Fees Regulations. Again, however, Mr Mackenzie did not advance any submissions as to why the A test should or could be applied in the context of delegated legislation such as the Fees Regulations, and I was not shown any authority in which the A test had been so applied. In A, the Supreme Court was specifically concerned with the type of conventional policy that a public body typically adopts in order to guide the exercise of a discretion (see paragraphs 1 and 39 per Lord Sales JSC and Lord Burnett CJ); it was not concerned with challenges to delegated legislation. Indeed, in the context of challenges based on Convention rights, Lord Sales and Lord Burnett expressly recognised that there is a difference of approach as between challenges to delegated legislation and challenges to policies (see paragraph 78). Accordingly, I am not persuaded that I should apply the A test in the context of the Fees Regulations.

[95]Further, insofar as Mr Mackenzie relied on MM (Lebanon) in the context of the Fees Regulations, he did not advance any submissions as to why or how the reasoning in MM (Lebanon) (which I discuss below) should or could be applied in the context of delegated legislation such as the Fees Regulations and, in particular, as to how MM (Lebanon) might support an ultra vires challenge.

[96]In light of the above, I am not persuaded that the challenge to the Fees Regulations has been made out. (3). The challenge to Appendix PL based on the MM (Lebanon) case

[97]The Claimant’s primary challenge to the Immigration Rules is to the effect that, where the applicant for ILR under Appendix PL is a child, the s 55 duty requires that Appendix PL itself make provision for decision-makers to have regard to the best interests of the child as a primary consideration in individual cases. In practical terms, this is a contention that the requirement to pay the fee laid down by paragraph PL1.2(a) of Appendix PL is unlawful or, alternatively, that Appendix PL must include some provision for that requirement to be waived.

[98]As I have explained above in the context of the Fees Regulations, it seems to me that the most obvious way of putting this challenge would be as an ultra vires argument, i.e. an argument to the effect that s 55 has circumscribed the Secretary of State’s power to make the Immigration Rules. Again, however, Mr Mackenzie does not advance an ultra vires argument in respect of the Immigration Rules. Rather, as Mr Mackenzie developed his argument in oral submissions, it emerged that he primarily founds it on the decision of the Supreme Court in MM (Lebanon) and the decision of the Divisional Court in R (ST) v Secretary of State for the Home Department

[2021] EWHC 1085 (Admin)

[2021] 1 WLR 6047

. Mr Mackenzie argues that these two authorities show that provisions of the Immigration Rules are unlawful if they do not themselves provide for decision-makers to comply with the s 55 duty in individual cases. Accordingly, I need to consider these two cases in a little detail.

[99]In MM (Lebanon), each of the claimants sought to challenge a statement of changes to the Immigration Rules which introduced a new provision into Appendix FM which imposed what was referred to as a “minimum income requirement”, a requirement which had to be satisfied before an individual who sought to come to the United Kingdom as the spouse of a person in the United Kingdom could be granted leave to enter. The main ground of challenge was to the effect that the new provision constituted an unjustified interference with the claimants’ Article 8 rights, but the nephew of one of the claimants, who was an interested party, advanced an argument to the effect that the Secretary of State had failed to comply with the s 55 duty (see paragraph 30 per Baroness Hale DPSC and Lord Carnwath JSC).

[100]A particular feature of the provisions of the Immigration Rules at issue in MM (Lebanon) was the fact that paragraph GEN1.1 of Appendix FM stated in terms that the provisions of Appendix FM themselves reflected how the balance was to be struck under Article 8 and that those provisions took “into account the need to safeguard and promote the welfare of children in the UK, in line with the Secretary of State’s [s 55 duty]” (see paragraphs 18 and 48). In effect, therefore, paragraph GEN1.1 asserted that a decision-maker would comply with the s 55 duty simply by applying the provisions of Appendix FM. However, Appendix FM did not make any provision for the waiver of, or the making of an exception to, the minimum income requirement, and it made no provision for the best interests of a child to be treated as a primary consideration in a particular case (see paragraphs 20-21). In this respect, the position in relation to the s 55 duty was materially different to the position in relation to Article 8; paragraphs GEN1.10 and GEN1.11 of Appendix FM expressly envisaged that a decision-maker might grant leave outside the rules on Article 8 grounds to an individual who could not satisfy the minimum income requirement (see paragraphs 19 and 58).

[101]Baroness Hale DPSC and Lord Carnwath JSC, with whom the other members of the Court agreed, held that it was necessary to consider the Immigration Rules in conjunction with the relevant Immigration Directorate Instructions to decision-makers (“the Instructions”) (see paragraph 77). The Instructions provided that, where the minimum income requirement was not met, leave to enter could nevertheless be granted outside the rules if there were “exceptional circumstances”. The Instructions identified two situations in which such exceptional circumstances might arise: first, where there were exceptional circumstances (defined by reference to “unduly harsh consequences”) which meant that a refusal of leave would give rise to a breach of Article 8 rights; or, secondly, where there were compelling compassionate circumstances which meant that a refusal of leave would give rise to unjustifiably harsh consequences (see paragraph 22). The Instructions advised that any consideration of exceptional circumstances must include consideration of factors relevant to the best interests of the child, but that the key issue was whether there were any factors involving the child which could be alleviated only by permitting the applicant to come to the United Kingdom, and that it was likely to be “only rarely” that exceptional circumstances would require a grant of leave to enter outside the rules (see paragraph 24). As a result, Baroness Hale and Lord Carnwath held that the Instructions did not adequately cure Appendix FM’s failure to cater for the s 55 duty, primarily because they laid down a highly prescriptive criterion which did not properly reflect the s 55 duty (see paragraph 91).

[102]Baroness Hale DPSC and Lord Carnwath JSC went on to consider Appendix FM itself, as follows (paragraph 92):

“…the statement in GEN.1.1 that the duty has already been taken into account in the Rules is wrong in law. Nor is the gap filled by GEN.1.10-11 which refer to the separate consideration under article 8, but not section 55. This is not simply a defect of form, nor a gap which can be adequately filled by the instructions. The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of Secretary of State’s functions including the making of the Rules. While the detailed guidance may be given by instructions, it should be clear from the Rules themselves that the statutory duty has been properly taken into account. We would grant a declaration that in this respect both the Rules and the instructions are unlawful.”

[103]I think that the reasoning set out in paragraph 92 of MM (Lebanon) requires some unpacking. The first point to note is that Baroness Hale and Lord Carnwath did not approach the question of whether Appendix FM was lawful by reference to whether it was ultra vires the Secretary of State’s power to make the Immigration Rules; at least they did not do so expressly. Rather, their reasoning focused on the s 55 duty.

[104]The first sentence which I have quoted above is directed at paragraph GEN1.1 of Appendix FM, i.e. the paragraph which stated that Appendix FM took into account the s 55 duty. As I understand the point being made by Baroness Hale and Lord Carnwath in that sentence, it is to the effect that paragraph GEN1.1 revealed a misdirection on the part of the Secretary of State: Appendix FM did not make adequate provision for a decision-maker to consider the best interests of a child in a relevant case, and therefore it was an error to state that Appendix FM “takes into account” the s 55 duty.

[105]In the following two sentences, Baroness Hale and Lord Carnwath appear to move on from the specific misdirection in paragraph GEN1.1 to consider what they saw as a more substantive problem, in that there was a “gap” in Appendix FM. Baroness Hale and Lord Carnwath did not expressly identify the “gap” to which they referred here (and in paragraph 91), but it seems to me that it must be a reference to the fact that Appendix FM did not itself make provision for decision-makers to consider the best interests of children in individual cases. Accordingly, Baroness Hale and Lord Carnwath appear to have concluded that Appendix FM was unlawful because it did not itself make provision for decision-makers to consider the best interests of children in individual cases, an omission which could not be cured by making the relevant provision in the Instructions.

[106]The reasoning as to why the law required that Appendix FM itself make provision for decision-makers to consider the best interests of children in individual cases would appear to be set out in the final four sentences of paragraph 92. As I understand that part of paragraph 92, the essence of the reasoning was as follows: the s 55 duty applies when the Secretary of State makes the Immigration Rules, it should be clear from the face of the Immigration Rules that the s 55 duty was complied with when they were made, and the absence of any provision in Appendix FM for decision-makers to consider the best interests of children in individual cases meant that it was not clear from the face of Appendix FM that the s 55 duty was complied with when it was made.

[107]However, this reasoning does not expressly explain why Baroness Hale and Lord Carnwath concluded that the fact that the s 55 duty applies when the Secretary of State makes the Immigration Rules meant that it had to be clear from the face of Appendix FM itself that the s 55 duty was complied with when it was made. In particular, paragraph 92 does not expressly explain why, for example, the Secretary of State is not entitled to conclude that compliance with the s 55 duty in an individual case can (at least in principle) be adequately catered for by consideration outside the rules. Nevertheless, reading paragraph 92 together with Baroness Hale’s and Lord Carnwath’s earlier discussion of the s 55 duty (see paragraphs 45 to 48), it seems to me that the explanation must lie in the fact that the Secretary of State’s own position was that, as a matter of substance, Appendix FM itself adequately catered for the s 55 duty to be complied with in individual cases. In essence, the Secretary of State herself had set Appendix FM up to stand or fall on its own terms.

[108]In the event, the remedy which Baroness Hale and Lord Carnwath proposed was a declaration that the Immigration Rules “fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act” (see paragraph 109).

[109]I recognise that there is potentially an alternative reading of MM (Lebanon), to the effect that the duty imposed on the Secretary of State by s 55 to “make arrangements” for ensuring that decision-makers consider the best interests of children in individual cases required that the Immigration Rules must themselves always provide for such consideration. However, Baroness Hale and Lord Carnwath referred to the “make arrangements” element of s 55 on only one occasion in their judgment, and then only in passing (see paragraph 46), which suggests to me that it is unlikely that their decision turned on it. Further, reasoning to this effect would have involved laying down a broad and potentially far-reaching proposition, and it seems to me that, if Baroness Hale and Lord Carnwath had intended to lay down such a proposition, they would have said so expressly. Accordingly, I consider that such an alternative reading of MM (Lebanon) is unlikely to be correct.

[110]The ST case involved a challenge to the provisions of the Immigration Rules which provided for, and the guidance given to decision-makers in relation to, the imposition of a no recourse to public funds condition on a grant of limited leave to remain. The relevant provision was again made by Appendix FM, which still included paragraph GEN1.1 (see paragraphs 37 and 60), and the relevant guidance was set out in the Family Policy. In particular, paragraph GEN1.11A of Appendix FM provided that a no recourse to public funds condition would normally be imposed on a grant of leave to enter or remain unless there was satisfactory evidence that the applicant was destitute or that there were “particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income” (see paragraph 61). One of the grounds of challenge in ST was to the effect that Appendix FM and the Family Policy (which was referred to as “the guidance”), and their operation in practice, failed to provide effective protection to the best interests of children, and thus breached the s 55 duty (see paragraph 6).

[111]The Divisional Court (Elisabeth Laing LJ and Lane J) held as follows:

“157. …We consider, first, the position under Appendix FM. It is clear from MM (Lebanon) [2017] 1 WLR 771 that the general statement in paragraph GEN 1.1 of Appendix FM to the Rules that the Rules comply with the duty imposed on the Secretary of State by section 55 does not decide the question whether, as a matter of law, any particular provision of Appendix FM of the Rules does so comply. Whether its provisions do so is to be decided by a construction of the relevant provisions of Appendix FM, and of any guidance which might mitigate (or exacerbate) the apparent effect of the Rules. 158. There was some debate in skeleton arguments and in oral submissions about the test we should apply when considering this ground. This ground does not concern ‘systemic unfairness’…. Nor is it a challenge to the Rules or the guidance based on their incompatibility with Convention rights…. The real question here is whether in framing Appendix FM and the guidance, the Secretary of State has complied with her section 55 duty, by ensuring that, when caseworkers decide whether to impose a NRPF condition, they comply with section 55. That depends on whether the relevant provision of Appendix FM requires, expressly, or in substance, read on its own or with the guidance, that a person who is deciding whether to impose, or to lift, a NRPF condition must comply with section 55 when he makes that decision. That is a straightforward question of construction (cf approach of the Supreme Court in MM (Lebanon) to the issue on which the claim in that case succeeded). 159. Paragraph GEN 1.11A does not refer to the best interests of a relevant child, still less does it reflect the approach to the best interests of a child which is encouraged in the guidance (which refers to ZH (Tanzania) [2011] 2 AC 166 and to Zoumbas [2013] 1 WLR 3690). Instead, while it refers to a child, it imposes a different, more stringent and narrower test than the approach in either of those cases. We consider, applying the reasoning in MM (Lebanon), that that does not expressly comply with section 55. Nor does it achieve substantial compliance, because it substitutes for the requirements of section 55 a test which does not have the same effect.”

[112]The Divisional Court went on to consider whether the guidance set out in the Family Policy mitigated this deficiency, but held that it did not (see paragraphs 160-161). In this respect, the Court’s starting point was that the Family Policy was unlikely to mitigate the identified deficiency because, if GEN1.11A had been intended to ensure compliance with the s 55 duty, it evidenced a misdirection, in that it substituted a different approach for that required by s 55 (para 160).

[113]I consider that ST involved a straightforward application of MM (Lebanon); in ST the only basis on which the Secretary of State sought to distinguish MM (Lebanon) was that fact that, it was said, the relevant provisions of Appendix FM and the Family Policy provided for greater flexibility in decision-making than had been the case in MM (Lebanon) (see paragraph 131). In particular, I consider that the test identified by the Divisional Court in paragraph 158 of ST was drawn directly from the approach adopted by Baroness Hale and Lord Carnwath in MM (Lebanon).

[114]On the face of it, both MM (Lebanon) and ST provide some support for Mr Mackenzie’s argument that provisions of the Immigration Rules are unlawful if they do not provide for a decision-maker to consider the best interests of children in individual cases: that is what each court decided on the facts of the case before it. However, Mr Holborn’s responseis that MM (Lebanon) and ST can be distinguished on the basis that in each case, by virtue of paragraph GEN1.1 of Appendix FM, the Immigration Rules purported to provide that a decision taken in accordance with Appendix FM would be compliant with the s 55 duty. Mr Holborn emphasises that there is no equivalent provision or statement in relation to Appendix PL, and that in the present context the Secretary of State expressly relies on her discretion to grant leave outside the rules as the mechanism by which (where necessary) the s 55 duty may be complied with.

[115]If my understanding of the reasoning in MM (Lebanon) is correct, the crucial feature (which was also a crucial feature of ST) was that the Secretary of State’s own position, as set out in the Immigration Rules themselves, was that Appendix FM itself adequately catered for the s 55 duty to be complied with in individual cases. In my view, that was the reason why the Supreme Court (and the Divisional Court in ST) held that Appendix FM itself had to make provision for decision-makers to consider the best interests of children in individual cases. That feature is not present here, and I consider that Mr Holborn’s argument that MM (Lebanon) and ST should be distinguished is correct.

[116]I consider that there is a further reason why MM (Lebanon) and ST should be distinguished. Because the Claimant has not made out his challenge to the Fees Regulations, I must proceed on the basis that they are lawful. It is common ground that, insofar as is relevant, the Fees Order and the Fees Regulations impose on the Secretary of State a duty to charge a fee for an application for ILR under the Immigration Rules. That being the case, Appendix PL faithfully reflects that duty. There was no equivalent duty in MM (Lebanon) or ST, and I do not consider that there is anything in those cases which suggests that the s 55 duty might somehow operate to require the Secretary of State to make provision in the Immigration Rules for decision-makers to act inconsistently with a duty which has been lawfully imposed by legislation. Certainly, no argument to that effect was advanced before me.

[117]Notwithstanding the history of the decision-making in the Claimant’s case, Mr Mackenzie did not seek to persuade me that, in an appropriate case, the Secretary of State does not in practice consider whether to grant leave outside the rules. Nor did he seek to persuade me that, for the purposes of s 55(1)(a) of the 2009 Act, when the Secretary of State considers whether to grant leave outside the rules, she exercises a function which is different from that which she exercises when she considers whether to grant ILR under the Immigration Rules. Accordingly, even if one were to step back and consider the element of the s 55 duty which requires the Secretary of State to “make arrangements”, I consider that in the present case the relevant arrangements comprise Appendix PL and the Secretary of State’s discretion to grant leave outside the rules. In principle, the discretion to grant leave outside the rules is at large and, again in principle, it is sufficiently broad to allow for a decision-maker to take into account the best interests of any potentially affected child as a primary consideration. On that basis, I do not consider that the fact that Appendix PL does not itself make provision for decision-makers to consider the best interests of children in individual cases means that the Secretary has failed in her duty under s 55 to “make arrangements”.

[118]In light of the above, the Claimant’s challenge to Appendix PL based on MM (Lebanon) and ST does not succeed. It does, however, remain necessary to consider how the Secretary of State approaches her discretion to grant leave outside the rules, which shifts the focus onto the Family Policy, which I address below. (4). The challenge to Appendix PL based on the A case

[119]Mr Mackenzie argues that Appendix PL purports positively to authorise or approve decision-makers acting in a way which does not comply with the s 55 duty in individual cases, and it therefore falls foul of the A test. In essence, Mr Mackenzie submits that, because Appendix PL in effect imposes a blanket prohibition on the grant of ILR under Appendix PL in a case in which the applicant cannot afford to pay the fee, it does not permit a decision-maker to take into account the best interests of a child as a primary consideration when deciding whether or not ILR should be granted in such a case.

[120]Mr Mackenzie argues that MM (Lebanon) and ST are examples of the application of the A test (or an equivalent to it; both cases were decided before the Supreme Court’s decision in A) to the Immigration Rules. I do not accept this argument. As I have explained above, I consider that in each of those cases the decision turned on an application of the s 55 duty in the particular contexts of those cases.

[121]However, Mr Mackenzie also argues that the A test is in any event applicable in the context of the Immigration Rules. In this respect, he relies on R (AB) v Secretary of State for the Home Department

[2022] EWHC 1524 (Admin)

[2022] 1 WLR 5341

, paragraphs 45 and 48 of which suggest that Lane J applied the A test in the context of a further challenge to paragraph GEN1.11A of Appendix FM. Mr Holborn does not argue that the A test does not apply in the context of the Immigration Rules; rather, his argument is that the Secretary of State’s discretion to grant ILR outside the rules provides a complete answer to Mr Mackenzie’s reliance on A in the context of the Immigration Rules.

[122]I am conscious that the question whether the A test is applicable in the context of the Immigration Rules is not necessarily straightforward. For example, although the weight of authority suggests that the Immigration Rules are statements of administrative practice which give effect to the Secretary of State’s policy (see, for example, Ali v Secretary of State for the Home Department

[2016] UKSC 60

[2016] 1 WLR 4799

, paras 16-17 per Lord Reed JSC), which would tend to suggest that the A test might apply, the Immigration Rules are somewhat unusual in public law terms. In particular, although the Immigration Rules do not constitute delegated legislation, unlike a conventional policy, they lay down detailed rules and they were formerly treated as law for at least some purposes (see, for example, Odelola v Secretary of State for the Home Department

[2009] UKHL 25

[2009] 1 WLR 1230

, paragraph 6 per Lord Hoffmann, paragraphs 34-35 per Lord Brown; Pankina v Secretary of State for the Home Department

[2010] EWCA Civ 719

[2011] QB 376

, paragraphs 16-17 per Sedley LJ). Indeed, in A itself, in the context of Convention rights the Supreme Court treated the Immigration Rules as akin to delegated legislation (see paragraph 78 per Lord Sales JSC and Lord Burnett CJ).

[123]I did not receive any detailed submissions on whether the A test could or should be applied in the context of the Immigration Rules. However, in view of the way that Mr Holborn put the Secretary of State’s case, and in view of the fact that Lane J appears to have applied the A test in AB (albeit there does not appear to have been any argument on the point), for present purposes I shall assume (without deciding) that the A test is applicable in the context of a challenge to the Immigration Rules.

[124]On the face of it, there is force in Mr Mackenzie’s argument that Appendix PL does positively authorise or approve a decision-maker acting in a way which does not comply with the s 55 duty in an individual case, and that therefore it falls foul of the A test. There are two main limbs to Mr Holborn’s response.

[125]First, Mr Holborn argues that the Family Policy could in effect cure what would otherwise be any unlawfulness in Appendix PL. In this respect, Mr Holborn also relies on AB. The facts of AB were as follows. Subsequent to the decision in ST, the Secretary of State had laid before Parliament a statement of changes to Appendix FM which were intended to give effect to that decision, but those changes had not yet come into force. However, the Secretary of State had amended the Family Policy. The claimant in AB argued that the continued inclusion of GEN1.11A in the Immigration Rules was unlawful and that the amendments which had been made to the Family Policy had been insufficient to address the unlawfulness that had been identified in ST, because the Family Policy continued to advise decision-makers to apply the approach set out in GEN1.11A. The Secretary of State’s response to this aspect of the challenge was that, in effect, the continued presence of paragraph GEN1.11A in Appendix FM was irrelevant, because in practice decision-makers were taking decisions solely on the basis of the guidance set out in the Family Policy. In response to this argument, which was advanced by Mr Holborn for the Secretary of State, Lane J held as follows:

“46. As an abstract proposition, Mr Holborn’s submission is unexceptionable. It would have been perfectly possible for the defendant, following ST, to issue guidance which told her caseworkers that GEN.1.11A(b), although technically remaining part of immigration rules, pending any amendment under the process mandated by the Immigration Act 1971, was nevertheless not to be followed because of the declaration of the Divisional Court. Instead, as I have already mentioned, the present guidance merely says, ‘paragraph GEN.1.11A provides a basis in the Immigration Rules for exceptions to the wider policy on migrants not having recourse to public funds’. 47. Although perhaps intended to be a statement about adult migrants, the ordinary meaning of those words plainly has a wider scope. Leaving aside for the moment the claimant’s criticism of the test set out later in the current guidance, it might nevertheless still be possible for the defendant to contend that actual decisions are no longer being taken by reference to GEN.1.11A(b). The actual decision-making in the present case, however, points directly to the opposite conclusion…. 48. … it is, in my view, impossible to escape the conclusion that the combined effect of the present GEN.1.11A and version 16.0 of the guidance is to sanction or authorise unlawful conduct….”

[126]It is clear from these passages that, when applying the A test, Lane J looked at the Immigration Rules and the guidance on them together. It is also clear that Lane J held that it would have been open to the Secretary of State to give guidance to decision-makers that they should not apply paragraph GEN1.11A of Appendix FM, and it is implicit that he considered that this might have resulted in Appendix FM and the guidance, taken together, not falling foul of the A test. However, it is important to read these passages in context. The background to AB was the fact that, in ST, the Divisional Court had held that paragraph GEN1.11A was unlawful. Accordingly, what Lane J was contemplating was guidance to decision-makers that they should not apply a provision of the Immigration Rules which had already been held to be unlawful by a court of competent jurisdiction. That is very different from the present case, in which the Secretary of State argues that the existence of the Family Policy (and, in particular, a section which addresses the grant of leave outside the rules) in effect saves Appendix PL from being unlawful in the first place. As a result, I do not consider that the passages in AB on which Mr Holborn relies support his argument.

[127]The second limb of Mr Holborn’s argument is that the Immigration Rules do not purport to constrain or guide the Secretary of State’s discretion to grant leave outside the rules and, because decision-makers can (and, on the Secretary of State’s case, will) comply with the s 55 duty when deciding whether to exercise that discretion, the Immigration Rules do not purport positively to authorise or approve decision-makers acting in a way that would breach the s 55 duty. In my view, this argument founders on the analysis in A itself. As I have already mentioned, the A case was concerned with the type of conventional policy which a public body typically adopts in order to guide the exercise of a discretion. It is axiomatic that such a policy cannot fetter the discretion to which it relates; in particular, the public body must always be willing to consider whether an exception to the policy should be made in an individual case. This point was expressly recognised by Lord Sales and Lord Burnett in A (see paragraph 3). Accordingly, it seems to me that it must be implicit in A that a policy is unlawful if it purports positively to authorise or approve unlawful conduct, even if there is the possibility of the decision-maker to whom the policy is addressed avoiding taking the relevant unlawful action by making an exception to the policy. It is the mere fact of purporting to authorise or approve unlawful conduct which breaches the dutynot to induce violations of the law by others (see paragraph 38). In my view, in effect Mr Holborn’s argument constitutes an invitation to depart from the normative approach laid down by the Supreme Court in A (see paragraph 41), and to return to the outcomes-based approach of which Lord Sales and Lord Burnett expressly disapproved (see paragraphs 64-66, 75). I do not consider that it is open to me to accept that invitation.

[128]Nevertheless, it seems to me that there is a more fundamental reason why the Claimant’s challenge to Appendix PL based on the A test must fail. As I have explained above, I must proceed on the basis that the Fees Regulations are lawful, and that they and the Fees Order impose on the Secretary of State a duty to charge a fee for an application for ILR under Appendix PL. On that basis, it is not unlawful for the Secretary of State to impose a blanket prohibition on the grant of ILR under Appendix PL in a case in which the fee is not paid, and therefore Appendix PL does not purport to authorise or approve decision-makers acting in a way which is unlawful.

[129]Accordingly, I do not consider that the Claimant’s challenge to Appendix PL based on the A test has been made out. In my view, the focus must again shift to the provision that the Secretary of State has made for the exercise of her discretion outside the rules, which means that the focus shifts to the Family Policy, to which I now turn. (5). The challenge to the Family Policy

[130]By the close of oral argument, Mr Mackenzie had come to focus his attack on the Family Policy and, in particular, the discretion guidance (which I have quoted in paragraph 67 above). In this respect, Mr Mackenzie again relies on the A test. In summary, his case is that the discretion guidance purports positively to authorise or approve unlawful conduct by decision-makers, because it advises decision-makers to apply a restrictive test of whether there are “particularly exceptional or compelling reasons” to determine whether they should grant ILR outside the rules, it fails to make any reference to the s 55 duty or to the best interests of children, and it makes no reference to the benefits that are likely to accrue to a child should he or she be granted ILR instead of limited leave to remain.

[131]In response, Mr Holborn seeks to make a virtue of the fact that the discretion guidance does not purport to address the s 55 duty or the best interests of children. His argument is that the discretion guidance is intended to cover a wide range of cases, it does not purport set out comprehensive guidance which would address every type of case which might arise and, in particular, it is not specifically directed to cases involving children. Mr Holborn relies on the fact that, unlike the sections of the Family Policy which were considered by Lane J in AB (see paragraphs 55-61), the discretion guidance does not purport to give guidance to decision-makers on the s 55 duty and, because the discretion guidance does not set out any positive advice in relation to the s 55 duty, it does not purport positively to authorise or approve non-compliance with the s 55 duty.

[132]Before addressing these arguments, I should dispose of one particular point. The Family Policy includes a section on “the best interests of a relevant child” (to which I have referred in paragraphs 64-66 above). Although Mr Holborn relied on this section (and the passage which I have quoted in paragraph 59 above) in his skeleton argument for the substantive hearing, I did not understand him to argue in his oral submissions that these parts of the Family Policy materially qualify the discretion guidance, and I think that he was right not to do so. As I have explained above, the section on the best interests of a relevant child is concerned with the question whether the “exceptional circumstances” and “unjustifiably harsh consequences” tests laid down by paragraphs GEN3.1 and GEN3.2 of Appendix FM are met, in accordance with the requirement to consider the best interests of a relevant child which is imposed by paragraph GEN3.3. I do not read the Family Policy as suggesting that the section on “the best interests of a relevant child” should be applied in any other context; in particular, I do not read the Family Policy as suggesting that this section should be applied in conjunction with the discretion guidance. Apart from a passing reference to the fact that the best interests of a relevant child must be taken into account as a primary consideration “[w]here making any decision which may affect the welfare of a child” (emphasis added), there is nothing in the text of the relevant section to indicate that it is applicable more generally. Indeed, as Mr Mackenzie pointed out, the section focuses on cases in which the refusal of leave to enter or remain would result in the unsuccessful applicant, and potentially his or her family, having to leave the United Kingdom, with the result that much of it would be inapposite in the context of a consideration of whether to grant a longer or shorter period of leave.

[133]There is no dispute between the parties that, when considering whether the Family Policy is lawful, I should apply the A test, and I agree; the Family Policy is plainly the type of policy with which the Supreme Court was concerned in A. Accordingly, the first question for me is: what does the discretion guidance tell decision-makers to do? When answering this question, I should adopt an objective approach, having regard to the discretion guidance’s purpose and underlying objective, and I should not adopt an overly-technical approach to the interpretation of the discretion guidance (see the authorities summarised in R (KA) v Secretary of State for the Home Department

[2022] EWHC 2473 (Admin)

[2023] 1 WLR 896

, paragraphs 149-151 per Julian Knowles J).

[134]In my view, it is important to begin any consideration of the discretion guidance by identifying what it is, and what it is not, addressed to. In particular, the discretion guidance is not addressed to the waiver of, or the making of an exception to, a requirement to pay a fee which is imposed by the Immigration Rules. Rather, the discretion guidance is directed at the question whether a decision-maker should grant a period of leave which is longer than the period of leave that the applicant would otherwise be granted under the Immigration Rules. For example, in the Claimant’s case, he was granted limited leave to remain for a period of 30 months under the Immigration Rules; under the discretion guidance, the question for the Secretary of State was whether the Claimant should be granted a longer period of leave, i.e. ILR. Further, generally the discretion guidance proceeds on the basis that a grant of ILR to an applicant under that section would involve granting ILR “early”, before the applicant had served the usual “probationary period” on limited leave (see paragraphs 1, 2 and 9). I say “generally” because the final sentence of paragraph 11 of the discretion guidance recognises a situation in which an applicant would have been eligible for a grant of ILR but for the fact that they had not made a valid application.

[135]As such, the discretion guidance is generally addressed to the situation in which an applicant seeks a period of leave which is longer than that for which he or she would be eligible under the substantive provisions of the Immigration Rules. In those circumstances, it would be unsurprising if the discretion guidance sought to impose a high threshold for the grant of leave outside the rules, and I agree with Mr Mackenzie that this is in fact what the discretion guidance does.

[136]The first two paragraphs of the discretion guidance set the scene for what follows. In particular, they explain that the general expectation is that applicants should serve a “probationary period” before being granted ILR and, because of the privileged status that a grant of ILR confers, that approach should be adopted unless there are “truly exceptional reasons” for adopting a different approach. Similarly, decision-makers are told that cases in which leave should be granted for a period which is longer than that which would normally be granted will be “rare”. It is in this context that the concept of “particularly exceptional or compelling reasons” is first introduced. Thus, the discretion guidance begins by impressing upon decision-makers the reasons why the grant of a longer period of leave would be an unusual course, thereby justifying the deployment of the concept of “particularly exceptional or compelling reasons”.

[137]Paragraphs 4 and 5 of the discretion guidance tells decision-makers how they should approach applications for a longer period of leave. It is, I think, worth setting those paragraphs out again, with added emphasis. “[4] There is discretion to grant a longer period of leave or ILR outside the rules where there are other particularly exceptional or compelling reasons to do so. There must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain under Appendix FM. “[5] In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons.”

[138]The first sentence of paragraph 4 tells decision-makers that the discretion to grant a longer period of leave arises where there are particularly exceptional or compelling reasons. Two points may be made about this. First, it is not clear why paragraph 4 refers to “other” particularly exceptional or compelling reasons (as does paragraph 2), but the implication would appear to be that not all particularly exceptional or compelling reasons are encompassed by those to which the discretion guidance refers. Secondly, it is implicit that the existence of other particularly exceptional or compelling reasons might not in itself be sufficient to justify the grant of a longer period of leave; the existence of such reasons is merely the occasion for the discretion to grant such a longer period arising (indeed, paragraph 8 indicates that some exceptional circumstances may justify the grant of only a short-term temporary period of leave).

[139]In my view, the second sentence of paragraph 4, and paragraph 5, convey an important point. By using the imperative “must”, and by emphasising that the “particularly exceptional or compelling reasons” criterion applies “in all cases”, those parts of the discretion guidance emphasise that the criterion is a prerequisite for the exercise of the discretion which applies in all cases, thereby affording no room for a different approach in some cases.

[140]I consider that the clear message of paragraphs 4 and 5 is that a decision-maker may grant a longer period of leave only if the applicant has demonstrated particularly exceptional or compelling reasons for doing so. Paragraph 9 emphasises that the “exceptional or compelling reasons” criterion imposes a high threshold, and reinforces that message by providing as an example a case in which a person would otherwise suffer “serious distress” which would have such a “disproportionately detrimental effect on the person’s health welfare that it would prevent recovery or development”.

[141]Paragraph 6 of the discretion guidance also reinforces what comes before, by telling decision-makers that, if a case is “not sufficiently exceptional or compelling”, they “should” grant only the default period of leave. Similarly paragraph 10 (which refers to “exceptional or compelling circumstances”) and paragraph 11 (which refers to “exceptional reasons”) reinforce the message that exceptional or compelling reasons are required before a longer period of leave may be granted.

[142]Accordingly, I accept Mr Mackenzie’s submission that the discretion guidance in effect instructs decision-makers to apply a criterion of “particularly exceptional or compelling reasons”. I also accept Mr Mackenzie’s submission that, if a decision-maker were to apply that criterion in a case such as the Claimant’s, without more, the decision-maker would not comply with the s 55 duty. As I have explained above, the s 55 duty requires a decision-maker to take into account the best interests of the child as a primary consideration. In practice, this involves the decision-maker balancing the best interests of the child (as a primary consideration), and any other factors which weigh in favour of a grant of ILR, against any factors which weigh against the grant of ILR. In my view, the “particularly exceptional or compelling reasons” criterion involves the application of a more stringent and narrower approach than that required by the s 55 duty. In effect, it skews the balancing exercise required by that duty; it is only if the best interests of the child (together with any other relevant factors) amount to “particularly exceptional or compelling reasons” that they can tip the balance in favour of a grant of ILR.

[143]Mr Holborn argues that the discretion guidance does not cut across proper compliance with the s 55 duty, because it is open to a decision-maker to treat the fact that the best interests of a child outweigh other countervailing considerations as a particularly exceptional or compelling reason. Although in theory it might be open to a decision-maker to apply the discretion guidance in this way, I do not consider that this is the approach which the discretion guidance contemplates. The intellectual exercise postulated by Mr Holborn would involve a decision-maker assessing the best interests of the child, weighing them (as a primary consideration) against other countervailing factors, and then, if the balancing exercise were to tip in favour of a grant of ILR, treating that outcome as a particularly exceptional or compelling reason. In my view, there is nothing in the discretion guidance which suggests such an approach and, further, it is in my view inconsistent with what, on a natural reading, the discretion guidance tells decision-makers to do. In my view, in a case in which the best interests of a child are relied on as a reason to grant ILR, the discretion guidance tells decision-makers to assess whether those best interests themselves constitute a particularly exceptional or compelling reason, and to grant ILR only if the best interests of the child amount to such a reason. I do not consider that there is anything in the discretion guidance which contemplates a decision-maker interpolating the type of intermediate balancing exercise postulated by Mr Holborn, and there is certainly nothing which tells decision-makers that they should adopt such an approach.

[144]There is nothing in the discretion guidance which ameliorates this problem: the discretion guidance does not mention the s 55 duty, and it does not give any advice to decision-makers which might result in compliance with the s 55 duty as a matter of substance. Thus far, therefore, I consider that the discretion guidance instructs decision-makers to adopt, and therefore both positively authorises and approves, an approach which would be unlawful in a case such as the Claimant’s, because it would not comply with the s 55 duty. In substance, the discretion guidance suffers from flaws similar to those which were identified in SM (see paragraphs 37-43 per Holman J), MM (Lebanon) (see paragraph 91 per Baroness Hale DPSC and Lord Carnwath JSC), ST (see paragraphs 159-161 per Elisabeth Laing LJ for the Divisional Court) and AB (see paragraphs 52-61 per Lane J).

[145]What, then, of Mr Holborn’s argument in response? Mr Holborn relies on paragraph 46 of A, where Lord Sales and Lord Burnett identified three categories of case “where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others”. Mr Holborn contends that the Claimant’s challenge to the Family Policy relies on the first such category, which comprises cases in which “the policy includes a positive statement of the law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way”. Starting from this premise, the gist of Mr Holborn’s argument is as follows: the discretion guidance is intended to deal with a wide range of cases, and primarily those in which an applicant has made an initial application for leave to enter; it is therefore unsurprising that the discretion guidance does not address the s 55 duty; and, because the discretion guidance does not address the s 55 duty, it does not fall into the trap of positively misstating the s 55 duty.

[146]There are four reasons why I am unable to accept this argument. First, I do not consider that, in paragraph 46 of A, the Supreme Court was seeking to qualify or limit what I have referred to the as A test. I agree with the analysis of that paragraph in R (Cardona) v Secretary of State for the Home Department

[2021] EWHC 2656 (Admin)

[2022] 1 WLR 1855

, paragraph 70, where Linden J expressed the view that the three categories identified by Lord Sales and Lord Burnett are illustrative, and that Lord Sales and Lord Burnett were not suggesting that each case should be examined with a view to determining whether it falls into any of the three categories and, if so, which (see also R (Timson) v Secretary of State for Work and Pensions

[2022] EWHC 2392 (Admin)

[2023] PTSR 85

, para 143 per Cavanagh J). In my view, it is implicit in Mr Holborn’s argument that, unless a policy falls into Lord Sales’s and Lord Burnett’s second or third categories, the A test is failed only if the policy includes a positive statement of the law which is wrong. I do not consider that this is a correct reading of paragraph 46 of A.

[147]Secondly, in paragraph 46 of A, Lord Sales and Lord Burnett expressly stated that they were concerned with the circumstances in which a policy would be unlawful as a result of what it does or does not say “about the law”. On the face of it, therefore, Lord Sales and Lord Burnett were here concerned with policies which purport to set out for decision-makers the law which applies to their decision-making function; they were not (or at least not primarily) concerned with policies which merely give practical guidance to decision-makers as to how they should exercise their discretions in individual cases. In my view, the discretion guidance is an example of the latter type of policy, not the former. As such, I do not consider that Lord Sales’s and Lord Burnett’s tripartite categorisation is applicable in the context of the discretion guidance.

[148]Thirdly, even if my first and second reasons were wrong, I consider that, because the discretion guidance in effect instructs decision-makers how to exercise their discretion, it constitutes an implicit statement of the law; a statement, which, as I have held, is wrong and which in a relevant case will induce decision-makers to breach their s 55 duty.

[149]Fourthly, and again if my first three reasons were wrong, I consider that the discretion guidance is an example of the third category of policies identified by Lord Sales and Lord Burnett in paragraph 46 of A, i.e. a policy which purports to provide a full account of the legal position but which fails to achieve it. Lord Sales and Lord Burnett gave as an example of the third category the situation in which “a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions”, such that “[t]he audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own”. Mr Holborn argues that the discretion guidance does not fall into Lord Sales’s and Lord Burnett’s third category, because it does not purport to be and (given that it is addressed to the grant of leave outside the rules, which might fall to be considered in a wide range of circumstances) it could not be comprehensive. However, as I have explained, the discretion guidance in effect instructs decision-makers as to how they should exercise their discretion, and it does not admit of any exceptions. Mr Holborn’s argument might have had greater purchase had the discretion guidance allowed for the possibility of a different approach in certain cases, whether expressly or implicitly, but it does not. In those circumstances, I consider that the discretion guidance does purport to give comprehensive guidance to decision-makers.

[150]In light of the above, I have come to the conclusion that the discretion guidance is unlawful because it falls foul of the A test. In particular, in a case such as the Claimant’s, the discretion guidance purports positively to authorise or approve the decision-maker reaching a decision in a manner which does not comply with the s 55 duty.

[151]Although I recognise that the A test requires me to adopt a normative approach, I consider that the facts of the Claimant’s case are at least consistent with my assessment of the effect of the discretion guidance. The decision of 8 March 2023 was the Secretary of State’s first substantive response to the Claimant’s application for ILR, and the thrust of her decision was that the Claimant should not be granted ILR because he had not demonstrated any sufficiently exceptional or compelling circumstances. In essence, the decision involved a straightforward application of the discretion guidance, without more. In particular, there was no hint in the decision of 8 March 2023 that the decision-maker had had regard to the Claimant’s best interests (or, for that matter, carried out the type of intermediate balancing exercise which Mr Holborn postulated). To my mind, this suggests that the decision-maker applied the discretion guidance in the way that is consistent with my interpretation of it. I recognise that the s 55 duty was expressly addressed in the decision of 31 January 2024 but, in light of the fact that this decision was taken only after the extensive involvement of legal representatives on both sides, I do not think that I should treat it as a typical illustration of how the discretion guidance is normally applied in practice. G. THE CHALLENGE TO THE FRAMEWORK ON OTHER GROUNDS (1). The challenge to the framework based on Article 8

[152]The Claimant’s challenge to the framework based on Article 8 is advanced in a similar way to his challenge based on the s 55 duty; it is a composite challenge to the framework on the basis that it does not permit the grant of ILR under Appendix PL in a case such as the Claimant’s, even where it would be in the child’s best interests to grant ILR. However, by the close of his oral submissions, Mr Mackenzie recognised that the challenge based on Article 8 faced a significant difficulty in that, as he very fairly accepted, generally a refusal to grant ILR does not interfere with an individual’s rights under Article 8.

[153]Mr Mackenzie seeks to overcome this difficulty by pointing to both the concrete and soft disadvantages which arise where an individual is granted limited leave to remain rather than ILR (see paragraphs 87-88 above). In this respect, Mr Mackenzie sought to draw an analogy with R (SA) v Secretary of State for the Home Department

[2015] EWHC 1611 (Admin)

, in which Karon Monaghan QC, sitting as a Deputy High Court Judge, held that a refusal of British citizenship to a child who was just shy of his 18th birthday constituted an interference with his Article 8 rights (see paragraph 77). In this respect, Ms Monaghan referred to the fact that the claimant’s application for citizenship “touched closely on his family life given that it would have been plain that the future of his siblings (and probably his mother) lay in the UK”, and touched on his private life because it affected his ability to develop and maintain relationships with others and his social identity. Ms Monaghan concluded that “given his close family ties to the UK and the sense of identity and belonging that would inevitably be fostered by the grant of citizenship and undermined by its refusal”, the refusal of citizenship interfered with the claimant’s private life and his family life.

[154]I am not able to accept the analogy which Mr Mackenzie seeks to draw between a refusal of ILR and a refusal of citizenship, and between the present case and SA. First, in relation to SA, Ms Monaghan’s decision clearly turned on the facts of the particular case; she expressly did not purport to decide that generally a refusal of citizenship constitutes an interference with Article 8 rights (see paragraph 77).Secondly, there are important differences between citizenship and ILR. The acquisition of citizenship involves the adoption of new nationality, and it brings with it a package of advantages, such as the right of abode, the eligibility to apply for a British passport, the right to vote in a general election, and access to consular support abroad. The Supreme Court has very recently confirmed “the fundamental importance” British citizenship (see R (N3) v Secretary of State for the Home Department

[2025] UKSC 6

[2025] 2 WLR 386

, paragraph 28 per Lord Sales and Lord Stephens JJSC), and the importance of citizenship in the context of an individual’s identity, and therefore his or private life, is well-recognised (see, for example, ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

[2011] 2 AC 166

, paragraph 32 per Baroness Hale JSC, paragraph 41 per Lord Hope DPSC; R (Johnson) v Secretary of State for the Home Department

[2016] UKSC 56

[2017] AC 365

, paragraphs 24-27 per Baroness Hale JSC). I was not shown any authority to suggest that ILR is to be treated in a similar way.

[155]There is a further problem facing Mr Mackenzie’s attempt to rely on an analogy with a refusal of citizenship. Subsequent to Ms Monaghan’s decision in SA, the Court of Appeal considered and rejected an argument that a refusal of citizenship constitutes an interference with Article 8 rights.In R (Williams) v Secretary of State for the Home Department

[2017] EWCA Civ 98

[2017] 1 WLR 3283

, Davis LJ (with whom Underhill and Macur LJJ agreed), held that a refusal to grant British citizenship generally does not constitute an interference with an individual’s right to respect for his or her private or family life, notwithstanding the fact that citizenship affords certain advantages over a grant of leave to remain (see paragraphs 55-63). I accept Mr Holborn’s argument that, if generally a refusal to grant citizenship does not interfere with Article 8 rights, it follows a fortiori that generally a refusal to grant ILR does not interfere with Article 8 rights.

[156]In this context, I should note R (MS (India)) v Secretary of State for the Home Department

[2017] EWCA Civ 1190

[2018] 1 WLR 389

. In that case it was conceded by the Secretary of State that the grant of very short periods of limited to leave to remain instead of ILR interfered with the claimants’ Article 8 rights, but the concession appears to have been made on the basis that a specific objective of the applicable policy was to prevent individuals such as the claimants acquiring a private or family life in the United Kingdom (see paragraph 102 per Underhill LJ). Neither party referred me to MS (India), and it seems to me that on the facts it was far-removed from the present case.

[157]On the basis that a refusal of ILR generally does not constitute an interference with Article 8(1) rights, the Claimant’s in principle challenge to the framework based on Article 8 falls at the first hurdle, and I do not need to consider it by reference to each of the specific measures which comprise the framework, and I do not need to consider the question of justification under Article 8(2).

[158]Had it been necessary to consider the question of justification, some potentially difficult issues might have arisen. Mr Mackenzie does not argue that the Fees Regulations or the relevant provisions of Appendix PL do not pursue a legitimate aim or are not in accordance with the law; accordingly, the key question would be whether those measures constitute a proportionate means of achieving a legitimate aim. It seems to me that, in this context, because the Secretary of State retains her residual discretion to grant ILR outside the rules, the test to be applied would be whether the Fees Regulations or the relevant provisions of Appendix PL are “unjustified in all or nearly all cases” (see R (Bibi) v Secretary of State for the Home Department

[2015] UKSC 68

[2015] 1 WLR 5055

, paragraph 60 per Baroness Hale DPSC, paragraph 69 per Lord Hodge JSC; MM (Lebanon), paragraphs 52-60 per Baroness Hale DPSC and Lord Carnwath JSC). However, notwithstanding the fact that this test would present a high hurdle from the Claimant’s point of view, it would be the Secretary of State who would bear the burden of justification. In this context, it seems to me that the absence of any evidence from the Secretary of State explaining why she has imposed the requirement that a fee must be paid for applications for ILR under the relevant provisions of Appendix PL (and how, even in general terms, she approached the factors provided for by s 68(9) of the 2014 Act) might have posed problems for her. Mr Holborn argues that the mere fact that Parliament has variously provided for, or approved, the requirement to pay a fee in itself demonstrates that there is a public interest in the charging of a fee, and the Fees Regulations and Appendix PL are therefore justified, but Mr Holborn did not refer me to any authority which supported such an approach to justification, and it seems to me that the position in this respect is potentially not as straightforward as Mr Holborn sought to suggest.

[159]Nevertheless, as I have explained, I do not need to consider the question of justification and, in view of the fact that it raises some potentially difficult issues, I do not propose to extend what is already a lengthy judgment by attempting to do so. (2). The challenge to the framework based on Article 14

[160]The Claimant’s challenge to the framework based on Article 14 originally included a conventional discrimination claim under Article 14, which relied on his status as an individual who could not afford the fee for an application for ILR under Appendix PL, as compared to individuals who could afford the fee. However, having considered the decision of the Court of Appeal in Williams, in which it was held that impecuniosity does not constitute a status for the purpose of Article 14 (see paragraphs 74-76 per Davis LJ), Mr Mackenzie helpfully confirmed in advance of the substantive hearing that he was not pursuing this element of the Article 14 challenge, and I shall say no more about it.

[161]As a result, the only element of the Article 14 challenge which the Claimant now pursues is that which alleges so-called Thlimmenos discrimination (see Thlimmenos v Greece

(2001) 31 EHRR 15

). In very broad terms, Thlimmenos discrimination arises where a public authority unjustifiably fails to treat persons who have relevantly different statuses differently.

[162]In R (DA) v Secretary of State for Work and Pensions

[2019] UKSC 21

[2019] 1 WLR 3289

, Baroness Hale PSC identified four questions which arise in the context of a Thlimmenos discrimination claim, questions which were subsequently adopted by Bourne J in R (Vanriel) v Secretary of State for the Home Department

[2021] EWHC 3415 (Admin)

[2022] QB 737

, paragraph 44. Neither party addressed me on how, if at all, the questions should be adapted in the context of an “in principle” challenge to measures such as the Fees Regulations or Appendix PL. Nevertheless, it seems to me that I should consider them as follows.(1) Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights?

(2) Does the ground on which the Claimant claims that discrimination arises constitute a “status”?

(3) Does the framework treat persons with the relevant status in the same way as other persons who do not share that status and whose situation is relevantly different?

(4) Does the similarity in treatment have an objective and reasonable justification?

[163]Although I have concluded that the refusal of ILR generally does not constitute an interference with Article 8 rights, the concept of the “ambit” of a Convention right is different to, and wider than, the concept of an interference with a Convention right. For the purposes of the present case, Mr Holborn accepts that the complaint about the refusal of ILR falls within the ambit of Article 8. Accordingly, the answer to the first question is “yes”.

[164]As pleaded, the Thlimmenos discrimination challenge relied on the failure to treat children differently from adults. However, in his oral submissions, Mr Mackenzie refined his position, and sought to rely on the failure to treat children who would otherwise qualify for ILR under Appendix PL differently from adults. Notwithstanding the expansive approach that is adopted to the concept of status, I harbour some doubts as to whether being a child who otherwise qualifies for ILR under Appendix PL is capable of constituting a status for the purposes of Article 14; in particular, it seems to me to come perilously close to defining the group which is alleged to be discriminated against by reference to the reach of the allegedly discriminatory measures. However, I received no submissions on this point, and therefore for present purposes I shall assume, without deciding, that being a child who qualifies for ILR under Appendix PL is capable of constituting a status for the purposes of Article 14. On that basis, I shall proceed on the basis that the answer to the second question is also “yes”.

[165]Mr Mackenzie’s argument on the third question is to the effect that children who would otherwise qualify for ILR under Appendix PL are in a relevantly different situation to adults, because they have what he referred to as a “particular privilege” of qualifying for ILR under Appendix PL. Mr Mackenzie argues that this different situation demands different treatment, but (in relation to the fourth question) the Secretary of State has failed to explain why the requirement to pay a fee for an application for ILR under Appendix PL, without any possibility of an exception or waiver, should be applicable to both groups.

[166]In my view, the difficulty with this argument is the fact that, insofar as is relevant, the requirement to pay a fee for an application for ILR arises only at the point at which the relevant applicant otherwise qualifies for ILR, regardless of whether the applicant is a child or an adult. I therefore agree with Mr Holborn that, in each case to which a requirement to pay a fee applies, the applicant has acquired the privilege of qualifying for ILR. In support of his argument that a child who would otherwise qualify for a grant of ILR under Appendix PL has acquired a “particular” privilege, Mr Mackenzie emphasised the fact that the provision which Appendix PL makes for the grant of ILR to children in the Claimant’s position was introduced as a bespoke route to ILR for children who fall within a specific and limited cohort, in order to support their journey to citizenship. However, I do not accept that these matters materially differentiate the position of children who would otherwise qualify for a grant of ILR under Appendix PL from adults who would qualify for a grant of ILR under some other provision of the Immigration Rules. In each case, the Secretary of State has identified a cohort of individuals who she considers should be able to benefit from ILR and, in many cases, a grant of ILR does not simply support an individual’s journey to citizenship, it is a prerequisite to a grant of citizenship. As such, I do not consider that the privilege enjoyed by children who would qualify for a grant of ILR under Appendix PL is materially different in nature or quality to that which is acquired by an adult who would qualify for a grant of ILR under some other provision of the Immigration Rules.

[167]Accordingly, on the basis of the argument put by Mr Mackenzie, I am unable to accept that children who would otherwise qualify for ILR under Appendix PL are in a relevantly different position to properly comparable adults. In my view, the correct comparator group comprises adults who would otherwise qualify for ILR under the Immigration Rules, and there is no relevant difference between the situations of the two groups. It follows that the answer to the third question is “no”, and the Article 14 challenge fails.

[168]In light of that conclusion, I do not need to consider the Article 14 challenge by reference to each of the individual measures which comprise the framework, and I do not need to consider the question of justification. Had it been necessary to do so, it seems to me that potentially difficult issues similar to those which I have discussed in paragraph 158 above might have arisen. Accordingly, I shall say no more about justification. (3). The challenge to the framework based on irrationality

[169]In his oral submissions, Mr Mackenzie indicated that the irrationality argument was, in effect, the Claimant’s fall-back position if he did not succeed on his challenge to the framework based on the s 55 duty. Nevertheless, even though I have held that the challenge based on the s 55 duty succeeds, I shall explain briefly why I consider that the irrationality challenge fails.

[170]The Claimant’s irrationality challenge is, in essence, to the effect that it is irrational for the Secretary of State to give with one hand, by creating the route to ILR under Appendix PL, but to take away with the other, by imposing the requirement to pay the fee for an application under Appendix PL. Although in this context Mr Mackenzie again emphasises that the Secretary of State has provided no evidence as to why she has imposed the requirement to pay the fee, as I understood the way he puts the argument, it is founded on what was said to be an internally contradictory approach by the Secretary of State as a matter of principle.

[171]The argument is implicitly predicated on an assumption that there are, at least theoretically, two sequential steps to be considered: first, the conferral of the benefit of eligibility for ILR under Appendix PL (the giving with one hand) and then, secondly, the nullification of that potential eligibility by way of the imposition of the requirement for the fee (the taking away with the other hand). However, I do not consider that this assumption is correct. Mr Mackenzie did not draw my attention to anything which indicates that the provisions governing eligibility for ILR under Appendix PL and those which impose the requirement to pay the fee for an application for ILR under Appendix PL are anything other than a package of measures. That being the case, one cannot legitimately divorce the requirement to pay the fee from eligibility for ILR under Appendix PL in the way in which the Claimant’s argument depends on. Viewed in this way, the requirement to pay the fee does not defeat eligibility for ILR, as alleged by the Claimant; rather, it is part and parcel of that eligibility (see, by analogy, Williams, paragraph 45 per Davis LJ). As such, the premise for the irrationality argument falls away.

[172]There is, I think, a further point to be made in this respect. Ultimately, the irrationality argument rests on the same proposition on which Mr Mackenzie relies in relation to the Article 14 challenge, i.e. the proposition that children who are otherwise eligible for ILR under Appendix PL are particularly privileged, and in a way uniquely so. However, as I have held, I do not accept that, in this respect, children who are otherwise eligible for ILR under Appendix PL are in a particularly unique position; insofar as is material, they are in no different a position to adults who would be eligible for a grant of ILR under the Immigration Rules. As such, it seems to me that the logic of the irrationality argument would, if it were correct, apply equally to others who would be eligible for a grant of ILR under the Immigration Rules. On that basis, the Claimant’s argument proves too much. In my view, it cannot be irrational for the Secretary of State to impose a requirement to pay a fee on any applicants for ILR; apart from anything else, such a conclusion would be inconsistent with the fact that Parliament has, by approving art 5 and Table 2 of the Fees Order, expressly authorised the charging of a fee for applications for ILR.

[173]Accordingly, the Claimant’s irrationality challenge to the framework fails. H. THE CHALLENGE TO THE DECISION BASED ON THE SECTION 55 DUTY (1). Introduction

[174]In his oral argument, Mr Mackenzie emphasised that the Claimant did not need to succeed on his challenge to the framework in order to succeed on his challenge to the decision. However, the converse is also true; it does not necessarily follow from the fact that the Claimant has succeeded on his challenge to the discretion guidance that he must succeed on his challenge to the decision. Accordingly, it remains necessary to consider the challenge to the decision which is based on the s 55 duty. (2). The parties’ arguments

[175]As I see them, Mr Mackenzie’s criticisms of the decision come down to three main points. First, by reference to paragraphs 10, 11 and 20 of the decision, he submits that, insofar as the Secretary of State took into account the Claimant’s best interests, she did so only as part of her consideration of whether the Claimant’s case fell within the discretion guidance, i.e. as part of her consideration of whether the Claimant had demonstrated “particularly exceptional or compelling reasons” why he should be granted ILR. As such, Mr Mackenzie argues that, insofar as the Secretary of State took into account the Claimant’s best interests, she did so as “an afterthought”, and not as a primary consideration. In reality, says Mr Mackenzie, immigration policy was treated as the only primary consideration. Mr Holborn disputes this analysis, arguing that the s 55 duty was expressly addressed in paragraphs 17 to 19 of the decision, and that a discrete conclusion on it was set out in paragraphs 20 and 21.

[176]Secondly, Mr Mackenzie submits that the Secretary of State had, in any event, failed properly to assess the Claimant’s best interests. He argues that, although the Secretary of State took into account the Claimant’s ability to remain in the United Kingdom with his family (see paragraph 18 of the decision), and his access to matters such as benefits, accommodation and healthcare (see paragraphs 14 and 18 of the decision), the Secretary of State did not take into account the fact that, if the Claimant were not granted ILR, he would suffer the concrete and soft disadvantages of remaining on limited leave to remain (see paragraphs 37 and 87-88 above). In this respect, Mr Mackenzie submits that, despite the fact that the Secretary of State stated that a grant of ILR would be “one of the most valuable privileges” (see paragraph 13 of the decision), and despite the fact that the provision for ILR made by Appendix PL is targeted specifically at children in the Claimant’s position, the Secretary of State did not include these matters in her assessment of the Claimant’s best interests. On the contrary, says Mr Mackenzie, the Secretary of State discounted them on the basis that they did not give rise to “any significant practical hardship” (see paragraph 18 of the decision). Mr Holborn’s response is that the soft benefits of a grant of ILR were expressly referred to in the decision, by way of the references to a “lack of ‘permanence’” (see paragraph 18) and “the precarious nature” of the Claimant’s immigration status (see paragraph 19).

[177]Thirdly, Mr Mackenzie submits that the Secretary of State failed properly to explain what countervailing factors were considered to outweigh the Claimant’s best interests, and why. In particular, he argues that the decision does not state that the Claimant’s best interests were outweighed by the need to charge a fee and, in any event, the decision does not explain why the Claimant’s best interests, which lay in a grant of ILR and which fell to be treated as a primary consideration, were so outweighed. In response, Mr Holborn relies on the fact that the decision refers expressly to the fact that the charging of a fee for an application for ILR is justified by the fact that a grant of ILR is “one of the most valuable privileges” available to individuals who come to or wish to stay in the United Kingdom (see paragraph 13). In this respect, Mr Holborn argues that the importance of charging a fee was, in effect, self-evident, and that there was no obligation on the Secretary of State to set out any specific disadvantages that might flow from granting ILR to the Claimant without the payment of the fee, even if it were possible to do so. Mr Holborn also emphasises the fact that the Claimant does not point to any particular factor which distinguishes his case so as to take it out of the ordinary run of cases. Relying on this, Mr Holborn argues that, if the Claimant’s best interests were to require a grant of ILR, the practical implication would be that the Secretary of State would be required to grant ILR in every other case in which a child could not afford the fee for an application of ILR. Ultimately, says Mr Holborn, the Claimant’s attack on the decision is a thinly-disguised attempt to re-argue the merits. (3). Analysis

[178]On any view, the decision is not as well drafted as it might have been, and it does not clearly signpost the issues that it addresses and the conclusions which it reaches on those issues. As a result, the structure and the substance of the reasoning is not always easy to follow. In particular, the fact that the various matters which are considered in paragraphs 13 to 19 of the decision, including the consideration of the s 55 duty, are bookended by references to the discretion guidance and “exceptional circumstances” gives rise to a measure of doubt as to whether, as Mr Mackenzie contends by way of his first point, the Secretary of State’s consideration of the Claimant’s best interests merely formed part of her consideration of whether there were “particularly exceptional or compelling reasons” such as to justify a grant of ILR in accordance with the discretion guidance. As I have held above, had the Secretary of State proceeded in this manner, she would not have properly discharged the s 55 duty.

[179]However, not without some hesitation, I have concluded that the Secretary of State’s consideration of the s 55 duty did not merely form part of her assessment of whether there were any “particularly exceptional or compelling reasons” in the Claimant’s case. In my view, paragraph 20 of the decision draws a distinction between the conclusion on the s 55 duty and the conclusion as to whether there were any exceptional circumstances, and this reading of paragraph 20 is supported by paragraph 21 which, as Mr Holborn submitted, identifies the s 55 duty as one of the discrete points which the Secretary of State has considered.

[180]Mr Mackenzie supports his argument on his first point by reference to the fact that, in paragraph 20 of the decision, the Secretary of State had asked herself whether the Claimant’s best interests “alter[ed] the outcome”. Mr Mackenzie argues that this demonstrates that the Secretary of State’s starting point was that ILR should be refused, and that something sufficiently weighty was required to justify a different decision (i.e. implicitly, something sufficiently “exceptional or compelling”). Although this part of paragraph 20 is an example of text that might have been better drafted, I do not consider that it demonstrates that the Secretary of State considered the Claimant’s best interests only as part of her consideration of whether the exceptional or compelling reasons criterion was met. In my view, the reference to “alter[ing] the outcome” is simply a somewhat oblique reference to a decision to grant ILR outside the rules (in contradistinction to the decision to refuse ILR under Appendix PL). Read in this way, the first part of paragraph 20 of the decision is, in effect, a statement that the Claimant’s best interests do not require a grant of ILR.

[181]Accordingly, I do not accept Mr Mackenzie’s first point. Nor, subject to the issue which I discuss in paragraph 185 below, do I accept his second point. Paragraph 18 of the decision correctly identified that the refusal of ILR would not have an impact on the Claimant’s ability to remain with his family or to remain in the United Kingdom. By its reference back to the absence of “significant practical hardship” discussed in paragraph 14, paragraph 18 also correctly recognised that a refusal of ILR would not visit on the Claimant the concrete disadvantages identified in paragraph 14. Nevertheless, paragraph 19 did identify the one concrete disadvantage that would result from the Claimant not being granted ILR (i.e. the continuing precariousness of his immigration status), albeit it noted that this disadvantage might not continue indefinitely. In my view, the soft disadvantages of not being granted ILR are also identified, albeit only briefly, in paragraph 18, by the reference to the “lack of ‘permanence’”.

[182]To this extent, therefore, paragraphs 18 and 19 of the decision set out why, at least in broad terms, it would be in the Claimant’s best interests to be granted ILR, albeit they also pointed to factors which the Secretary of State appears to have treated as limiting the extent to which a grant of ILR would be in the Claimant’s best interests.

[183]However, I consider that Mr Mackenzie is on much stronger ground with his third point. If my reading of the decision is correct, the Secretary of State concluded that it would be in the Claimant’s best interests to grant him ILR, albeit apparently only to a limited extent. On that basis, the fact that it would have been in the Claimant’s best interests to grant him ILR was required to be taken into account as a primary consideration. However, there is nothing in the decision which indicates that the Secretary of State took this into account as a primary consideration. Indeed, there is no explanation at all of how the Secretary of State balanced the Claimant’s best interests against any other factors: having discussed where the Claimant’s best interests lie in paragraphs 18 and 19, the decision proceeds immediately to state a conclusion as to best interests in paragraph 20, without any explanation of how or why that conclusion was reached.

[184]I am inclined to agree with Mr Holborn that it is implicit in the decision that the importance of charging a fee, which was identified in paragraph 13, was the factor which was weighed against the Claimant’s best interests; the decision does not identify any other potentially countervailing factor. However, I do not accept Mr Holborn’s submission that it does not matter that the decision did not expressly refer to the Claimant’s best interests having been treated as a primary consideration because it is in effect self-evident that this factor outweighed the Claimant’s best interests, even treating the latter as a primary consideration. The problem facing the Secretary of State in this respect is that, as Mr Mackenzie points out, paragraph 13 is something of a double-edged sword as far as she is concerned. Although paragraph 13 reveals that the Secretary of State considered that there was a good reason why a fee should be charged for applications for ILR, that good reason relied solely on the value of a grant of ILR to the individual, and the fact that a grant of ILR is “one of the most valuable privileges”. In my view, therefore, paragraph 13 introduces not only a factor which could be weighed against the Claimant’s best interests, but also a factor which could reinforce the fact that the Claimant’s best interests would be served by a grant of ILR.

[185]It is not apparent from the decision whether this latter factor was carried forward into the assessment of the Claimant’s best interests in paragraphs 18 and 19. If it was, it could only have increased the extent to which the Claimant’s best interests would have been served by a grant of ILR. On that basis, it cannot be said that it was self-evident that the importance of charging a fee was considered to outweigh the Claimant’s best interests, even treating them as a primary consideration. Alternatively, if this factor was not carried forward to the assessment discussed in paragraphs 18 and 19, there is no explanation as to why not.

[186]Accordingly, even if I were to accept Mr Holborn’s submission that paragraph 13 of the decision reveals what the Secretary of State weighed in the balance against the Claimant’s best interests, it does not demonstrate that the Claimant’s best interests were taken into account as a primary consideration, as required by the s 55 duty. In particular, paragraph 13 does not make good the absence of any explanation as to how the Secretary of State balanced the Claimant’s best interests against any other factors. Further, insofar as Mr Holborn argues that the decision-maker undertook the type of intermediate balancing exercise which I have discussed in paragraph 143 above, I can see nothing in the decision which indicates that such an exercise was undertaken.

[187]As a result, I do not consider that the Secretary of State properly treated the Claimant’s best interests as a primary consideration (cf PRCBC, paragraphs 72-73 per David Richards LJ; Zoumbas, paragraph 10 per Lord Hodge JSC for the Supreme Court). It follows that, when taking the decision, the Secretary of State did not comply with the s 55 duty, and the decision is unlawful for that reason.

[188]For the avoidance of doubt, I do not accept Mr Holborn’s argument that, if the Claimant were to succeed on this aspect of his challenge, it would mean that the Secretary of State would in effect be required to grant ILR in every case in which a child in the Claimant’s position cannot afford the fee for an application for ILR under Appendix PL. As both parties accept, in the context of the consideration of an individual case, the s 55 duty is what might be characterised as a “process” duty to take into account a particular matter; it does not mandate a specific outcome in any particular case. The effect of my decision is that the Secretary of State did not properly take into account the relevant matter, and I do not need to (and I do not) express any view as to what decision or decisions might be open to the Secretary of State on a proper approach to the s 55 duty; that will be a matter for the Secretary of State on any reconsideration of the Claimant’s application for ILR. I. THE CHALLENGE TO THE DECISION ON OTHER GROUNDS (1). The challenge to the decision based on Article 8

[189]Although the decision expressly addresses the Claimant’s Article 8 rights (see paragraphs 14 and 21), on the Article 8 challenge to the decision, it is for the Court to determine for itself whether the decision is incompatible with the Claimant’s Convention rights, contrary to s 6(1) of the 1998 Act.

[190]As with the Claimant’s challenge to the framework, the first question is whether the decision constitutes an interference with the Claimant’s Article 8 rights. I have already held that generally a refusal to grant ILR does not constitute an interference with an individual’s Article 8 rights, so the question refines itself into one of whether there is anything in the particular facts of the Claimant’s case which indicates that the decision interfered with his right to respect for his private or family life. When I pressed Mr Mackenzie on this issue during the course of oral argument, he was, I think, understandably in some difficulty in identifying a basis on which it could properly be concluded that the decision gave rise to a breach of the Claimant’s Article 8 rights.

[191]As to the Claimant’s family life, he is currently on the same limited leave to remain as his mother and father. I do not know what the current position is in relation to the Claimant’s sister, but Mr Mackenzie does not suggest that anything arises out of the sister’s position which gives rise to an interference with the Claimant’s right to respect for his family life. In light of this, Mr Mackenzie accepts that realistically he cannot argue that the decision interfered with the Claimant’s right to respect for his family life. Insofar as the Claimant’s private life is concerned, I agree with Mr Holborn that, given the Claimant’s young age, I cannot simply assume that the decision has had any material impact on the Claimant’s private life. Indeed, in light of the absence of any evidence from or on behalf of the Claimant explaining what effect, if any, the refusal to grant ILR has had on the Claimant, Mr Mackenzie accepts that he is in some difficulty in arguing that the there is anything in the Claimant’s case which would take it out of the ordinary run of cases.

[192]Accordingly, I do not consider that the decision interfered with the Claimant’s rights under Article 8(1). That is sufficient to dispose of this element of the claim, and it is not necessary for me to go on to consider whether, under Article 8(2), the decision was justified as being in accordance with the law and a proportionate means of achieving a legitimate aim. Had I had to do so, it is likely that it would have been difficult to hold that the decision was justified, not least because, as I have held, the decision was not in compliance with domestic law (see CAO v Secretary of State for the Home Department

[2024] UKSC 32

[2024] 3 WLR 847

, para 55 per Lord Sales JSC and Dame Siobhan Keegan LCJ). (2). The challenges to the decision based on Article 14 and irrationality

[193]Mr Mackenzie did not, in support of the challenge to the decision, advance any submissions based on Article 14 or irrationality which were distinct from those which he advanced in support of the Claimant’s challenge to the framework. I have already explained why the challenges to the framework based on Article 14 and irrationality fail and, insofar as challenges to the decision are maintained on the same bases, they fail also.

J. SUMMARY AND REMEDY

[194]In summary, therefore, I have concluded that the discretion guidance section of the Family Policy is unlawful because, in a case such as the Claimant’s, in which an applicant for ILR under Appendix PL is a child who cannot afford the fee for such an application, the discretion guidance 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. None of the other grounds of challenge succeed and, in particular, the challenges to the other parts of the framework fail.

[195]Accordingly, my answers to the questions which I set out in paragraph 82 above are as follows.(1) Is any part of the framework unlawful because it breaches or results in breaches of the s 55 duty? Yes; the discretion guidance section of the Family Policy is unlawful to the extent which I have identified. Otherwise, the measures which comprise the framework are lawful.

(2) Is any part of the framework unlawful because it is incompatible with Article 8? No.

(3) Is any part of the framework unlawful because it is incompatible with Article 14 taken together with Article 8? No.

(4) Is any part of the framework unlawful because it is irrational? No.

[196]My answers to the questions which I set out in paragraph 83 above are as follows.(1) Did the Secretary of State properly comply with the s 55 duty when taking the decision? No.

(2) Was the decision incompatible with the Claimant’s Article 8 rights? No.

(3) Was the decision incompatible with the Claimant’s rights under Article 14 taken together with Article 8? No.

(4) Was the decision irrational? No.

[197]Having considered a draft of this judgment, the parties were able to agree the terms of an order giving effect to my decision. I am broadly content with the terms proposed by the parties, and I shall grant the following by way of final remedies:(1) a declaration that the discretion guidance is unlawful in that, in a case in which a child is seeking ILR outside the Immigration Rules because he or she cannot pay the requisite fee for an application for ILR under Appendix PL, the discretion guidance purports positively to authorise and approve the decision-maker reaching a decision in a manner which does not comply with the s 55 duty;

(2) a declaration that the decision was unlawful because, contrary to the s 55 duty, the Defendant failed to treat the Claimant’s best interests as a primary consideration; and

(3) an order quashing the decision.

[198]The consequence of the decision being quashed is that, in accordance with the agreement recorded in the consent order of 5 November 2023, the Secretary of State will need to redetermine the Claimant’s application for a grant of ILR outside the rules.

[199]As also agreed between the parties, the Secretary of State shall pay to the Claimant 85% of the Claimant’s reasonable costs of the claim, to be assessed on the standard basis if not agreed.