AB & Anor, R (on the application of) v Secretary of State for the Home Department [2026] EWHC 1890 (Admin)

[2026] EWHC 1890 (Admin)Case No AC-2025-LON-002215
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/07/2026
Before
DEPUTY HIGH COURT JUDGE AIDAN EARDLEY KC
THE KING(On the application of)
Between
AB (a minor by their litigation friend LM)ClaimantsAC (a minor by their litigation friend LM)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Satvinder Juss (instructed on a direct access basis by LM) for ClaimantsMichael Biggs (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 9 July 2026
APPROVED JUDGMENT

Aidan Eardley KC:

[1]In this claim for judicial review, brought with the permission of HHJ Auerbach (sitting as a High Court Judge), the Claimants challenge the decision of the Defendant refusing to exercise her discretion under s3(1) of the British Nationality Act 1981 (BNA) to grant them British citizenship.[2]This is my judgment following a one-day hearing where the Claimants were represented by Satvinder Juss and the Defendant by Michael Biggs, both of counsel. Factual background[3]The Claimants are children who were aged 12 and 11 respectively when they applied to be registered as British citizens on or about 16 June 2023. They were born in Nairobi, Kenya and they were living there with their parents who run a tourist business in the country. However, AB had been awarded a scholarship to a boarding school in the UK and was due to commence her studies there in September 2023.[4]For reasons that will become clear, it is important to distinguish between, on the one hand, the facts provided by the Claimants when they first applied for citizenship and then sought reconsideration of the initial refusal and, on the other hand, the much fuller factual account now placed before the Court through witness statements and exhibits filed in the course of these proceedings. I start with the information made available to the Defendant up to and including the date of the impugned decision.[5]A firm of lawyers in Nairobi, Glascote Rose (presumably instructed on the Claimants’ behalf by their parents) wrote to the Defendant on 16 June 2023 seeking the Claimants’ registration as British citizens.[6]The letter in support of AB’s application contained the following information (in summary): her parents were British Overseas Citizens at the time of her birth, but her father had recently (June 2022) been registered as a British Citizen; her father holds a work permit in Kenya but not any permanent right of residence there; Kenyan law precludes her from obtaining Kenyan citizenship so she is stateless; AB’s grandparents and great-grandparents on both her maternal and paternal side all hold/held UK citizenship or were Citizens of the United Kingdom and Colonies (CUKC); the Kenyan authorities have granted her, as a courtesy, a Certificate of Identity, which operates as a temporary travel document and has allowed her to obtain a visa permitting travel to the UK but she is hindered in travelling elsewhere because of visa requirements; she has a “dependent pass” that permits her to reside in Kenya but this is contingent on her father’s work permit, and she needs a student pass to study in Kenya which is issued for only a year at a time and renewal of which is not guaranteed; she has been award a scholarship at an English boarding school, to commence in September 2023, which is “a life time opportunity that neither [she] nor her parents wish to lose” but, not having a passport or other permanent travel document she was experiencing “challenges with the completion of the registration process and subsequent CAS [confirmation of acceptance for studies] processing”.[7]The letter enclosed various supporting documents including, it is said, a “scholarship letter” and an “acceptance form” from the British boarding school. Counsel were unable to direct me to copies of these documents.[8]The letter in support of AC’s application was in materially the same terms (including a statement that he had secured a visa to travel to the UK), other than in respect to his education. In that regard, it was stated that he was a student at a school in Nairobi and a letter confirming this was attached.[9]The Claimants’ applications were refused on 5 April 2024. The refusal was on the basis that the Claimants did not meet the criteria for granting citizenship on the grounds of statelessness set out in BNA Schedule 2, para 4 (the Defendant did not dispute that the Claimants are stateless but pointed out that they did not satisfy the requirement, in that provision, that applicants should have been resident in the UK for 3 years). There was no consideration of BNA s3(1).[10]On 30 August 2024 Glascote Rose sent a letter of claim challenging the refusal and submitting that citizenship should have been granted under the BNA s3(1) discretion. This letter did not add materially to the factual picture other than to state that the Claimants’ mother had previously been granted indefinite leave to remain in the UK and “was well on her way to acquiring British Citizenship in her own right”.[11]In response to this letter of claim, the Defendant directed the Claimants to the potential alternative remedy of seeking reconsideration of the refusal. The Claimants then requested reconsideration.[12]The Claimants’ reconsideration requests, submitted on 6 September 2024, added only minimally to the stock of information available to the Defendant. Glascote Rose added that both the Claimants’ parents “have spent significant periods of their lives in the UK”, specifically that their mother “had spent the formative years of her life living and studying in the UK before returning back to Kenya, as has the claimants’ father” and that they “have relinquished any possible claim to Kenyan citizenship in order to make their children eligible for another citizenship”. The Decision under challenge[13]By letters dated 5 March 2025 the Defendant notified the Claimants that she had decided to uphold the original decision refusing to grant the Claimants’ citizenship. The material parts of the letter concerning AB. Having accurately recited the submissions made by Glascote Rose, the letter stated:
“In support of the application you have provided numerous copy documents including a letter from the Kenyan directorate of Immigration Services dated 13th June 2023, a letter from your client’s school, your clients birth certificate, various certificates of identity, your client’s fathers certificate of naturalisation, your clients parents and grandparents birth certificates and other supporting documents. The points you have raised and the evidence provided have been carefully considered.”
The points you have raised and the evidence provided have been carefully considered.”[14]The letter then reiterated that AB did not qualify under BNA Schedule 2, para 4 but went on to consider the discretion under BNA s3, acknowledging that the mandatory threshold requirements for that section (age and good character) were met. The letter continued:
“However, there are a number of usual expectations that are used as a guide for all applications made under section 3(1) of the BNA81 which caseworkers must consider and apply equally to all applications. The main expectations for applications made under section 3(1) of the BNA81 are: - the child’s future intentions - the child’s parents’ circumstances - residence in the UIK - the child’s immigration status - any compelling compassionate circumstances raised as part of the application [AB]’s future intentions cannot be seen to be in the UK because she has never lived here, her family do not live here, she does not have leave to remain and does not have settled status. It is acknowledged that [AB]’s father is now a British citizen. However, it is noted that her mother is not settled in the UK”

The main expectations for applications made under section 3(1) of the BNA81 are:

[15]Further passages from the guidance pertaining to s3(1) are quoted and the letter continues:
“As [AB]’s mother is not settled in the UK, the usual expectation regarding [AB]’s parents circumstances is not met…” “As stated above [AB]’s future intentions cannot be seen to be in the UK because she has not lived in the UK, her family is not living in the UK, [AB] is not settled in the UK, and her mother is not settled in the UK. Consideration has been given whether to grant exceptionally and whether the benefit of [AB] becoming a British citizen now outweighs the usual expectations. However, although it is noted that [AB] is not Kenyan and she has a British citizen parent, there are no other compelling or compassionate circumstances to explain why Simran needs to become a British citizen now rather than follow the usual route to applying for leave to remain, settlement and then citizenship. Having British Subject and CUKC grandparents is not a sufficiently compelling reason to disregard the usual expectations. There are other immigration routes available should [AB]’s parents want her to live in the UK. In order to maintain a fair and consistent immigration policy the guidance must be applied equally to all applicants. The Secretary of State expects there to be a staged approach to registering as a British citizen so that applicants first apply for leave to remain and settlement before considering an application for citizenship. Disregarding the usual expectations should only be considered appropriate where there are compelling or compassionate reasons for doing so. In this instance, there is no reason why [AB] needs to become a British citizen now rather than apply for leave to remain and then settlement. Although the UK does have an obligation to reduce statelessness, the scope of how this is permitted is outlined in the Statelessness guidance referred to above. There are still a number of requirements that must be met and for which there is no discretion available. The statelessness requirements are not met in this instance. Consideration has also been given to Section 55 of the Borders Act, 2009 This requires caseworkers to consider the best interests of a child in casework decisions that have an impact on that child. All decisions must demonstrate that the child’s best interests have been considered as a primary, but not necessarily the only consideration. Other relevant considerations include the need to ensure a fair, consistent and coherent immigration policy, including the expectation that in a case of this nature, migrants will follow a staged approach to citizenship, with a qualifying period of limited leave before being eligible for settlement and to have settlement before applying for British citizenship. In considering this citizenship application, Section 55 of the Borders Act, 2009 was given due consideration in the course of determining the children’s registration applications alongside current Nationality staff instruction. The best interests of any child are always considered but not the extent that current policy and legislation is disregarded. We would point out that not being a British citizen would not prevent [AB] from being able to enjoy family or private life. An applicant who qualifies may choose to apply for citizenship, but is not obliged to do so in order to participate in society. A grant of citizenship may confer certain benefits on an applicant but this is not the same as saying that the absence of access to those benefits constitutes a breach of Article 8(1) of the ECHR. There is no arguable breach of family life involved as [AB] lives with her parents abroad and enjoys a family life there together with them. Their ability to enjoy a family life together is unaffected by our decision to refuse the citizenship application. There are other immigration routes available to Simran to enable her to enter the UK…”
[16]The decision letter in AC’s case is in materially the same terms.[17]The Defendant accepts that it is the decision that was communicated in these March 2025 letters that is the proper target of this claim for judicial review (the Decision). Evidence post-dating the Decision[18]I can deal with this briefly because – as explained below – I consider that I cannot take into account materials that were not available to the decision-maker in March 2025. However, the contrast between the evidence now available and that placed before the Defendant’s decision-maker is noteworthy. In summary, the following points emerge from the two Witness Statements of the Claimants’ mother filed in the course of these proceedings, and the exhibits thereto.[19]The Claimants’ mother explains that the Certificate of Identity, which the children have and is supposed to serve as a temporary travel document, is not well-recognised or understood by border officials and airlines, meaning that they have only been able to travel to the UK and Tanzania and, even then, travel has been severely disrupted and has involved considerable extra expense and even harassment. It is said that AB was, on one occasion, denied boarding on a flight she was taking to return to school in the UK in April 2025 despite having the necessary authorisations, causing her to miss out on schooling and, on other occasions, dealing with the bureaucracy has resulted in her travelling late and missing further school days. In total (as at April 2026) she had missed 30 school days. A supportive letter from her school says that these interruptions have had a tangible impact on her schooling. Travelling late means that she misses the bus the school arranges to pick up foreign pupils, causing the family to spend money on long-distance taxi rides in the UK. As a result of the concerns about being able to travel, AB has taken to spending half-term holidays in the UK but, as her school cannot accommodate her during those periods, her family have paid for her to stay in hotels, causing them concern about her welfare and requiring UK-based members of the family to visit and check in on her. The letter from AB’s school notes that she is sitting GCSEs in summer 2026 and has strong potential to pursue her academic goal which, it is stated, is to study veterinary science at a UK university.[20]As to AC, there is now evidence that he has a form of Down Syndrome giving rise to special medical and educational needs. There is evidence from a Kenyan paediatrician who opines that the management of AC’s condition is “best evaluated by overseas medical facilities” but AC’s mother states that when they took him to the UK for medical tests in 2016 they faced travel difficulties. There is also evidence that his educational needs would be better met through support that is not readily available in Kenya. The Legal Framework BNA s3(1) and the associated guidance[21]It is agreed that the only relevant provision of the BNA in this case is s3(1), which provides: 3 Acquisition by registration: minors (1) If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen”[22]The Defendant has published guidance as to how her decision makers should exercise this (on its face) very broad discretion. I was shown two sets of relevant guidance in the form in force in late 2023. It was common ground that there had been no material changes to these pieces of guidance by the time of the Decision in March 2025.[23]First, there is guidance entitled “Registration as a British citizen: children” (Version 14.0, August 2023: the Child Registration Guidance). In the relevant section (“Other applications under section 3(1)), it is stated that: “The expectation is that registration should normally only take place where an applicant satisfies the criteria set out elsewhere in this guidance. However, under section 3(1)… the Home Secretary has discretion to register a person under the age of 18 at the date of application where they see fit to do so. In considering whether it is appropriate to register a child on this basis, you must take the following factors into account:• The child’s future intentions• The child’s parents’ circumstances• Residence in the UK• The child’s immigration status• Any compelling compassionate circumstances raised as part of the application[24]Building on these five bullet points, the Guidance states that, in respect of the child’s future intentions: You must be satisfied that a child’s future is clearly seen to lie in the UK where this is stated in their application unless there is information to cast doubt on this… Where you have reason to doubt a child’s future lies in the UK you must seek further clarification. If you are still not satisfied that the child’s future is in the UK, you should refuse the application…”[25]As to “Child’s parents’ circumstances” the guidance says that “…you should normally be satisfied that one of the parents is either a British citizen …, and either the other parent is settled in the UK [or - irrelevant] …”[26]As to “Residence in the UK” the guidance says that:
“A child seeking registration as a British citizen under [BNA s3(1)] should normally have completed a period of residence in the UK because: • It is consistent with the majority of other provisions under which a child can be registered • It enables a child to establish personal connections with this country • It helps confirm that a child’s future clearly lies here…”
[27]As to “Child’s immigration status” the guidance states that, unless the child has been in the UK for more than 10 years, “we would normally expect the child to have become settled in the UK before applying for British citizenship. This is because a child’s future can clearly be seen to lie in the UK if they are not subject to immigration time restrictions. It is also consistent with other routes based on residence in the UK, in which a person is expected to follow a path through settlement to citizenship”.[28]As to “compelling or compassionate circumstances”, the guidance states that:
“There may be circumstances where the normal expectations for registration are not met but there are exceptional circumstances which mean that it is appropriate to register a child. You must be satisfied that there are compelling circumstances which mean that registration is in the best interests of the child… You must therefore consider any representations made as part of an application and consider whether these are sufficient to mean that discretion should be exercised in their favour.”
[29]There is also guidance in place entitled “Registration as a British citizen – A guidE about the registration of children under 18”, known as Guide MN1 (October 2023). In the relevant section (entitled “Any other child born to British or non-British parents”) it is stated: It is not possible to cover all the circumstances under which the Home Secretary might exercise discretion. However, in considering any application not specifically covered above we will look at all of these:• The child’s connections with the UK – we would expect the child to be free of any restrictions on their stay in the UK• Where the child’s future is likely to lie• The parents’ views• The parents’ nationality and immigration status – we expect either both parents to be British citizens or one parent a British citizen and the other parent settled in the UK• Whether the child is of good character• The length of time the child has lived in the UK – we expect at least 2 years residence (particularly if the child is over the age of 13) - this would be considered along with the other factors above, such as whether the child is settled in the UK• Any compelling circumstances The way that discretion may be exercised is described in the Caseworker guidance [which is in fact a reference back to the Child Registration Guidance which I have already set out above] Borders, Citizenship and Immigration Act 2009 and the associated guidance[30]Section 55 of the Borders, Citizenship and Immigration Act 2009 (BCIA) relevantly provides: 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 Although s55(1) refers to “children who are in the United Kingdom” the Section 55 Guidance does not distinguish between children who are in the UK and children who are outside the UK but wish to come here. The Defendant did not take any point about the fact that (at least) the Second Claimant was not in the UK at the time of the Decision. […](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).[31]The Secretary of State has produced statutory guidance to the UK Border Agency entitled “Every Child Matters” (November 2009: the Section 55 Guidance) and it is this guidance to which decision makers must “have regard” under s55(3) (the Section 55 Duty).[32]It is convenient to adopt the summary of the relevant parts of the Section 55 Guidance given by the Supreme Court in CAO v Secretary of State for the Home Department [2024] UKSC 32, [2025] AC 1117 at [7]-[9]:
“[7] The introduction to the Guidance stated (para 6) that it was issued under section 55(3) and (5), which requires any person exercising immigration, asylum, nationality and customs functions to have regard to guidance given by the Secretary of State, and continued: “This means they must take this guidance into account and, if they decide to depart from it, have clear reasons for doing so.” [8] Part 1 of the Guidance, entitled “Understanding the duty to make arrangements to safeguard and promote the welfare of children”, included the following: (i) The duty under section 55 requires the UK Border Agency “to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children” (para 1.3). (ii) The UK Border Agency's contribution to safeguarding and promoting children's welfare would be “to identify and act on their concerns about the welfare of children with whom they come into contact” (para 1.6). (iii) Key features at an organisational level for safeguarding and promoting the welfare of children comprise senior management commitment to the importance of this objective, making a statement of responsibilities available for all staff, a clear line of accountability within the organisation for work on this objective, taking account of this objective in service development, staff training, safe recruitment, effective inter-agency working and information sharing (para 1.9). (iv) Under the heading “Work with individual children and their families”, at para 1.14: “In order to safeguard and promote the welfare of individual children, the following should be taken into account, in addition to the relevant section of Part 2 of this guidance. The key features of an effective system are: • Children and young people are listened to and what they have to say is taken seriously and acted on … • Where possible the wishes and feelings of the particular child are obtained and taken into account when deciding on action to be undertaken in relation to him or her.” (v) Para 1.13 stated: “The ways in which agencies work with or have contact with individual children and their families will differ depending on the functions of each agency. Some will focus on direct work with children and young people, whereas others will work with children and their families, and still others will work with adults with parenting responsibilities for children.” (vi) Para 1.15 said that the UK Border Agency should seek to reflect certain general principles underpinning work with children and their families “as appropriate”, including (para 1.16) that the work should be “child centred”, “supporting the achievement of the best possible outcomes for children and improving their wellbeing”, “involve children and families, taking their wishes and feelings into account” and “informed by evidence”
.

(b) stated:

“In order to appreciate the child's needs and how they make sense of their circumstances it is important to listen and take account of their wishes and feelings. It is also important to develop a co-operative constructive working relationship with parents and caregivers so that they recognise that they are being respected and are being kept informed. Where there is respect and honesty in relating to parents they are likely to *1129 feel more confident about providing vital information about their child, themselves and their circumstances.” [9] Part 2 of the Guidance, entitled “The role of the UK Border Agency in relation to safeguarding and promoting the welfare of children”, included the following: (i) “The UK Border Agency's main contributions to safeguarding and promoting the welfare of children include: • Ensuring good treatment and good interactions with children throughout the immigration and customs process” (para 2.4). (ii) “The UK Border Agency acknowledges the status and importance of the following: the [ECHR]” (para 2.6). (iii) Para 2.7 stated: “The UK Border Agency must also act according to the following principles: • Every child matters even if they are someone subject to immigration control. • In accordance with the [UNCRC] the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children … • Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children's concerns.” (iv) More detailed guidance was provided in relation to the matters referred to in para 8(iii) above, such as training for UK Border Agency staff. (v) Under the heading, “Work with individual children”, para 2.18 stated: “This guidance cannot cover all the different situations in which the UK Border Agency comes in to contact with children. Staff need to be ready to use their judgement in how to apply the duty in particular situations … In general, staff should seek to be as responsive as they reasonably can be to the needs of the children with whom they deal, whilst still carrying out their core functions.”
[33]There is also mention of the Section 55 Duty in the Child Registration Guidance which states that:
“In practice this requires a consideration to be made of the best interests of a child in casework decisions, including those covered by this guidance, that have an impact on that child. All decisions must demonstrate that children’s best interests have been considered as a primary, but not necessarily the only consideration. Whilst in the majority of cases it might be argued that it is in an individual child’s best interests to become a British citizen, British nationality law is based on the acquisition of citizenship through a close connection with the UK, including residence, lawful presence and family ties. It is therefore consistent that we adopt similar expectations in applying the Home Secretary’s discretion to register a child. If it is claimed that a child requires British citizenship at the current time, this needs to be weighed against the wider requirements to ensure a fair, consistent and coherent immigration and citizenship policy. …The section 55 consideration should take account of any views expressed by the child …” …The section 55 consideration should take account of any views expressed by the child …”
[34]CAO is now the leading case on the Section 55 duty. The following points emerge from the Supreme Court’s judgment (Lord Sales JSC and Dame Siobhan Keegan LCJ, with whom the other judges agreed):(1) The Section 55 Guidance is “high level guidance which must be adapted by officials to the facts of a particular case when children are involved” [10] (and see, to similar effect, [89]);(2) The Section 55 Duty is analogous to the duty in the Race Relations Act 1976, s71(1) to “have due regard” to the need to eliminate unlawful racial discrimination etc and the public sector equality duty (Equality Act 2010, s149) that requires public authorities to “have due regard” to the need to eliminate discrimination etc. Accordingly “what is important in terms of compliance is that the decision-maker does indeed have regard to the substance of the matters to which the duty refers.” : [79](3) The Section 55 Guidance has both substantive and procedural elements: “It refers both to matters regarding the focus or content of decisions on the merits (namely, that the need to safeguard and promote the welfare of a child should be brought into account) and to matters of procedure (in particular by encouraging engagement with the child or their family in appropriate cases… if a decision-maker has in mind that the best interests of the child are to be treated as a primary consideration…it seems likely that common sense would usually lead them to engage with a child and their family in an appropriate way to gather the information required to make the relevant assessment…”[80] However, “The Guidance is intended to provide direction for practical decision-making as to the best interests of children in an area involving hundreds of cases each year. It cannot be interpreted to require procedural steps to be taken which have no practical bearing on the matter which arises for determination” [89](4) Compliance with the Section 55 duty is a matter of substance, not form. Thus it is not fatal if decision letters fail to refer to the Section 55 Duty or the Section 55 Guidance if the letter “in fact show that regard has been given to the welfare and best interests of affected children”: [67]. Accordingly, the Supreme Court disapproved earlier cases, including MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC) insofar as they placed emphasis on the form of decision letters and whether they referred explicitly to the Section 55 Guidance or its contents: [8]. The Court continued, at [82] “[82] But it is right to conclude this section by pointing out that the authorities indicate that where a “have regard” duty applies, it is good practice for the decision-maker to refer to the duty and the matters to which it calls attention in terms, in order to demonstrate that the duty has indeed been complied with and put the question beyond doubt…Accordingly it would be desirable and not unduly burdensome for the Secretary of State…to including reference to the Guidance in their decision letters, even though it is not fatal as a matter of law if they do not. This would dispel any notion that children’s rights are not properly considered in the immigration context as they should be. It also follows that if there is to be any departure from the Guidance in a particular case, it would be desirable for those decision-makers to explain this and the reasons why…”(5) As to how a court should consider whether there has been compliance with the Section 55 duty: “The question whether appropriate regard has been had to the Guidance in any case will depend upon an assessment by the relevant immigration official as to how the broad directions it gives should be applied in particular circumstances, and the Guidance itself emphasises the need for the exercise of judgment by officials …” [89] Accordingly, “The lawfulness of such an assessment is subject to the usual public law rationality test, in the same way that the application of a policy set by a minister is: see R(Begum) v Special Immigration Appeals Commission [2021] AC 765, paras 124-131” [90] What I take from this is that (as Mr Biggs submitted), where the Section 55 Guidance appears to recommend that a particular step should be taken or a particular decision made, a decision maker who (having consciously considered the Guidance) does not take that step or make that decision will only act unlawfully if it would be irrational (in the Wednesbury sense) to do otherwise than to follow the Guidance. It is important to note however that the Supreme Court continued: “However, we should add that the importance of determining the best interests of a child for the purpose of decision-making in this area means that the rationality test may be relatively constrained, in the sense that anxious scrutiny of the child’s circumstances is required to ensure that the decision-maker can be sufficiently confident that they have determined what their best interests are.” [90][35]I was also referred to Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, another Supreme Court decision concerning the Section 55 Duty preceding but consistent with CAO. At [21] Lord Hodge JSC (speaking for the Court) said that “the interests of the children must be at the forefront of the decision-maker’s mind” but added, at [23] that “In our view, the Secretary of State does not have to record and deal with every piece of evidence in her decision letter”. At [25], he rejected a criticism that consideration of the children’s best interests had apparently been left to the end of the decision making process (the decisions under challenge being concerned with the father’s asylum claim):
“It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance”
. The Grounds of Review and the Issues for Determination[36]The statement of facts and grounds, which is contained in the Claimants’ judicial review form itself, are not in conventional terms. At the end of Section 5 (“Statement of facts relied on”), having identified the decision to refuse registration, it is stated, “This is irrational”. In Section 6 (“Detailed statement of grounds”) , in an apparent continuation of an explanation of the case that the decision is irrational, reference is made to the Claimant’s precarious status arising from their current statelessness. Then there is reference to BCIA Section 55 suggesting that, by reason thereof, the Claimants were entitled to a “favourable decision which honours the need to safeguard and promote the welfare of children”, and reference of the UK’s obligation under the UN Convention on the Rights of the Child to ensure the best interests of the child are a primary consideration. Lastly, in this section of the form, reference is made to GUIDE MN1 in an apparent suggestion that regard to that guidance should have resulted in the Defendant exercising her discretion in the Claimants’ favour. Also, at Section 4.4 (which asks, “Does any part of the claim allege a breach of Convention rights protected under the Human Rights Act?”)the Claimants have answered “yes”, stating, “The Claimants’ Article 8 rights under the HRA to physical and moral development and a nationality; to Article 7 of the UN Convention on the Rights of the Child to a nationality; and to Article 3 of the HRA to be free from inhuman and degrading treatment”.[37]Mr Juss submits that the terms of the Claim Form allow him to advance a large number of public law and human rights challenges to the Decision. In particular, he wishes to argue that there has been a breach of the Section 55 Duty (including by failing to seek further information about the Claimants or to interview AB before making the Decision); that the decision-maker has failed to take into account relevant information (AB’s scholarship to the English boarding school); that there has been a breach of the Tameside duty (again by failing to seek further information about the Claimants); that the Decision is in any event irrational; that there has been a failure to give reasons; and that the Decision breaches the Claimants’ ECHR Article 8 rights.[38]Mr Biggs submits that the only challenge properly articulated in the Claim Form is one of “outcome irrationality”, i.e. that the Decision was Wednesbury unreasonable because no rational decision maker could have arrived at the same conclusion. He says that this is consistent with the terms of HHJ Auerbach’s Order granting permission, which stated: “Permission to apply for judicial review is granted, in respect of the defendant’s decision not to exercise her discretion under section 3(1) British Nationality Act 1981 in favour of either or both of the claimants”.[39]Mr Biggs objects to the Claimant advancing Tameside arguments, challenging the sufficiency of the Defendant’s reasoning in her letters, raising a freestanding argument that the Defendant has not followed the Section 55 Guidance, and advancing human rights arguments. None of these matters, he submits, have been properly foreshadowed or articulated.[40]I have considerable sympathy with Mr Biggs’ objections about the unclear and shifting nature of the Claimants’ case. Nevertheless, I do not want to decide this claim on pleading points, save where allowing the Claimants to pursue an aspect of their case would create unfairness to the Defendant or difficulties for the Court. Accordingly, I propose to consider the Claimants’ case under the following headings:(1) Has there been a breach of the Section 55 Duty?(2) Was the Decision otherwise vitiated by a failure to have regard to relevant matters or (having regard to relevant matters, including the Section 55 Guidance) Wednesbury unreasonable?[41]I do not consider that the Claimants’ Tameside argument is capable of adding anything, given that the procedural aspect of the Section 55 means that (just as in a Tameside case) it would have been unlawful for the Defendant to fail to make further enquiries about the Claimants’ circumstances before deciding their applications if no reasonable decision-maker would have failed to do so. The Claimants’ challenge to a lack of reasoning in the Decision letters is also effectively subsumed into the Section 55 challenge since (as explained above) the case law addresses the level of detail that is required when notifying applicants of the decision.[42]I am not prepared to consider the Claimants’ human rights challenges. It was insufficient simply to mention ECHR Articles 3 and 8 in Section 4.4 on the Claim Form: the nature of the alleged breaches should have been articulated in the grounds themselves. Neither did any of the Claimants’ skeleton arguments (there have been three over the course of the claim) articulate any detailed human rights case. There are obvious complications with such a claim (not least because AC lives in Kenya and would appear to be outside the scope of the Convention) and the Defendant was entitled to a timely and particularised statement of the case she had to meet. She may have wished to file responsive evidence. It was unfair to expect Mr Biggs to respond to Mr Juss’s human rights arguments which only really took shape in the course of oral submissions.[43]It follows, from the way I have framed the issues for determination, that the two witness statements the Claimant’s mother has made, and the documents she exhibits thereto, are essentially irrelevant to my task, for which I must focus on the Decision itself, considered in light of the information that was before the Defendant’s decision-maker at the time. (See, generally, the Administrative Court Guide (2025) at 23.2.3 which summaries the limited situations in which post-decision material will be admissible). The most that can be said is that this evidence gives a flavour of the information about the Claimants’ circumstances that the Defendant might have learnt if she had made further enquiries before making the Decision (as the Claimants contend she was obliged to do). Was there a breach of the Section 55 Duty?[44]Mr Juss puts the Claimant’s case on the Section 55 Duty in a number of ways. First, he contends that the Section 55 Guidance required the Defendant to make further enquiries about the Claimants’ circumstances, future intentions, wishes etc before determining their applications including, at least in AB’s case, by interviewing her. Second, he says that the Decision letters were required to, but did not, refer to the Section 55 Guidance and/or there is no evidence that it was taken into account. Third, he says that the decision-maker was required to start by considering the Claimants’ best interests but instead has proceeded in the wrong order by asking first what the “normal” outcome of the applications should be and only then considering the Section 55 Duty at the end of the decision in what amounts to no more than lip-service. Fourth, he submits that the Section 55 Duty required the Defendant to identify the Claimants’ best interests, which she did not do. Fifth, he submits that the Section 55 Duty required the Defendant to conduct a balancing exercise between the Claimants’ best interests and countervailing factors which, again, she did not do.[45]Mr Biggs contends that the Defendant was entitled to make the Decision on the basis of the information that the Claimants (through their parents and lawyers) had decided to submit and that there were no “red flags” suggesting that any further or different information needed to be looked for. He submits that the Decision letters demonstrate compliance in substance with the Section 55 Duty as explained in CAO and that it was not necessary for them to expressly address the Section 55 Guidance or to start the decision-making process with a consideration of the children’s best interests. He submits it is plain and obvious that the children’s best interests lay in obtaining British citizenship and that the decision-maker must have accepted this because they then went on to consider countervailing factors (thus carrying out the balancing exercise for which Mr Juss contends).[46]I deal first with the submission that the Section 55 Duty required the Defendant to make further enquiries about the Claimants before making her Decision. I reject that submission. It is true that the Section 55 Guidance does state that “Children should be consulted and the wishes and feelings of children taken into account wherever practicable”, but it is also clear, from CAO, that this is not an invariable requirement. It should be remembered that the Section 55 Guidance applies to a very wide range of situations, including situations in which the focus of the decision in question is the adult parent (such that there may be little information before the decision maker about the child’s position) or where (as in the case of older children) there is reason to doubt whether the child’s interests are aligned with the adult’s. In such situations, it may be incumbent on the decision-maker to carry out further investigations before the best interests of the child can be ascertained reliably.[47]This case is different: it is an application made on behalf of the children themselves, prepared by lawyers instructed by their parents, and focussed entirely on the Claimants’ situation. There was no reason to suspect that the Claimants’ interests might be different from what their parents and lawyers said they were. There was no reason for the decision-maker to consider that the Claimants’ parents and lawyers might have misstated or understated the information that they wanted the Defendant to take into account. There were no “red flags” of the sort discussed in CAO (also a case where it was held that the Section 55 duty did not require the decision-maker to interview the child: see [95]).[48]The question for me, on this point, is whether it was irrational for the decision-maker, based on the information that was before them, to proceed to make the Decision without conducting further enquiries, taking into account that “anxious scrutiny” of the children’s circumstances is required. The answer, in the circumstances, must be no.[49]I am also satisfied that the Decision letters provide sufficient evidence that the substance of the Section 55 Duty was complied with. It is true that there is no express reference to the Section 55 Guidance itself, but there is express reference to the Section 55 Duty, a reference to the best interests of the children having been considered as a primary consideration, and then a reasoned explanation of why that has not led to a grant of citizenship in this case (no prior grant of limited leave or settlement, limited impact on private and family life, other bases on which the Claimants are able to enter the UK). It is fair to say that the reasoning is brief (though no briefer than the decision in Zoumbas: see [17]-[18]) and may fall short of the best practice encouraged in CAO at [82] but, as that paragraph makes clear, falling short in this way does not render the decision unlawful.[50]I am not persuaded that Defendant failed to comply with the Section 55 Duty because the decision-maker began by considering (in accordance with the Child Registration Guidance) whether there were features of the Claimants’ cases that would “normally” lead to registration (and if, not whether there were other compelling and compassionate circumstances) and only then turning to consideration of the children’s best interests. A similar criticism was rejected in R(OBN) v Secretary of State for the Home Department [2024] EWHC 1833 (Admin) at [11]-[21] (David Pittaway KC sitting as a Deputy High Court Judge) and it is clear from Zoumbas (at [25]) that the Defendant will not breach the requirement to consider a child’s best interests as a primary consideration, or to have those interests at the forefront of her mind, by considering other matters first and then turning to consider whether the child’s best interests make a difference. That is what happened here.[51]It would be odd if the position were otherwise, because the Section 55 Duty will arise in every case where the Child Registration Guidance applies so that, on the Claimants’ case, asking first what the “normal” position is would always be in tension with the Section 55 Duty, yet the Claimants have not submitted that the Child Registration Guidance itself is unlawful.[52]As to the fact that the Decision letters do not spell out what, in the writer’s view, the best interests of the Claimants actually are, Mr Bigg concedes that this is the Claimant’s best point but has nevertheless persuaded me that it does not lead to a conclusion that the decision-maker has breached the Section 55 duty in substance. It will have been clear to the decision-maker that the Claimants were contending that it was in their best interests that they should be registered as British citizens (again, it is relevant in this regard that these were applications by the children for decisions about the children, and not for example applications by or decisions about adults which might have some collateral effect on children). I accept that it is implicit from the Decision letters that the decision-maker accepted that registration would be in the Claimants’ best interests (not least because of the line in the Child Registration Guidance which recognises that “in the majority of cases it might be argued that it is in an individual child’s best interests to become a British citizen”). If the decision-maker had not accepted that premise, then, as Mr Biggs submits, the rest of the Decision makes no sense, because there would have been no need for the decision-maker to go on and identify countervailing considerations pointing towards the refusal of registration.[53]It can also be seen from this part of the Decision letters that the decision-maker is indeed carrying out the requisite balancing exercise between the children’s best interests and other relevant considerations. There is a clear weighing of the limited impact of refusal on the children (as it will have appeared to the decision-maker on the information supplied) against the general interest in ensuring that successful applicants have been through the steps of obtaining limited leave to remain and then becoming settled in the UK.[54]I would observe, before moving on, that many of Mr Juss’s submissions about the structure and content of the Decision letters were founded on what was said about these matters in MK. However, that aspect of MK has been held by the Supreme Court in CAO to be legally erroneous as placing too much emphasis on form over substance. It is CAO that I must follow and, doing so, I am satisfied that the Defendant complied in substance with the Section 55 Duty and gave sufficient reasons. Was the Decision otherwise vitiated by a failure to have regard to relevant matters or (having regard to relevant matters, including the Section 55 Guidance) Wednesbury unreasonable?[55]In AB’s case, Mr Juss submitted that the decision-maker had failed to take into account the fact that she had been awarded a scholarship at the English boarding school – a highly material consideration, he said, because of the improved prospects in further education and careers that such a prestigious award carries with it (and the commensurately greater detriment of losing out on such opportunities if the scholarship cannot be taken up).[56]I do not consider this submission to be well-founded. The fact of the scholarship was stressed in AB’s application and the Decision in her case expressly states that all the supporting documents had been considered. These included the “scholarship letter “ from the school dated 29 March 2023 and her acceptance form. Another decision-maker might have chosen to make express reference to the fact that AB had been granted a scholarship to study in England but the absence of express mention does not cause me to conclude that it was not considered, particularly in light of the assurance in the Decision that “The points you have raised and the evidence provided have been carefully considered”. Zoumbas at [23] notes that a decision-maker is not required to address every piece of evidence expressly.[57]As to irrationality, Mr Juss made a narrower and a wider submission. His narrower submission was that it was irrational for the decision-maker to conclude that the Claimants’ “future intentions cannot be seen to be in the UK”. I reject this narrower submission. Neither when first applying, nor when seeking a reconsideration, did Glascote Rose state or imply that the Claimants intended to settle in the UK. The thrust of their submissions was that the Claimants needed British citizenship because of the precarious status and bureaucratic difficulties that their statelessness exposed them to (wherever they might be). In AB’s case, those difficulties were said to involve unspecified “challenges” with her preparations to take up her scholarship in the UK, but the fact that she had secured the scholarship is a neutral factor as to where her long-term future intentions lay (many foreign pupils attend UK boarding schools, some with a view to settling here, others intending to return to their home countries for future study and work).[58]The Decision letters gave four reasons for holding that the Claimants’ future intentions did not lie in the UK (they had never lived here, their family do not live here, they did not have leave to remain and they did not have settled status). In AB’s case, the decision-maker ought to have realised that, by March 2025, she was probably attending school in England (although that was never expressly stated on her behalf) and hence, in a sense “living” here but, even with that qualification, the reasoning is sound in my view and cannot be dismissed as irrational.[59]I would also add in passing (because the point was not expressly made by Mr Juss) that the Defendant was entitled to make this finding about the children’s future intentions without making further enquiry of them. It is true that the Child Registration Guidance says that “Where you have reason to doubt a child’s future lies in the UK you must seek further clarification” but it seems to me that this part of the guidance is addressed to a situation in which it has been asserted or implied that the child’s future does lie in the UK. As I have explained, no such assertion or implication was made on the Claimants’ behalf in the materials that were before the decision-maker.[60]Mr Juss’s wider point on irrationality is that the overall conclusion in the Decisions is unsustainable. He points to the close connection the Claimants’ family has with the UK (through their father’s citizenship, the citizenship conferred on their grandparents and great grandparents, their mother’s indefinite leave to remain and the fact that both parents had spent their formative years in the UK); he points to the precarious nature of the Claimants’ status in Kenya while they remain stateless and the bureaucratic difficulties that this status poses for travel and other matters; he argues that the best interests of the Claimants lie in obtaining citizenship, and he places particular reliance, in AB’s case, on her scholarship to the English boarding school. He submits that, taking all this into account, the only rational decision would be to register the Claimants as British citizens, concerns about adhering to the “normal” expectation that an applicant should have spent time in the UK with leave to remain and then acquired settled status being comprehensively outweighed.[61]The difficulty for Mr Juss is the very limited amount of information that was before the decision-maker when they made the Decisions. As I have already noted, there was no express or implied assertion that either Claimant wished to settle in the UK. In AB’s case, the decision-maker was told in the original application that she had been able to obtain a UK visa but that she was having unspecified “challenges” with registering at the English school and obtaining a CAS letter which put in doubt whether she would be able to start her studies in England September 2023. No further information was given about this when seeking reconsideration and the decision-maker was entitled to assume that any difficulties encountered had been overcome. There was no mention of the difficulties that AB had subsequently encountered when travelling to and from the school (which, in any event, seem to have begun in earnest after the date of the Decision).[62]In AC’s case, there was no information whatsoever before the decision-maker as to his disability, the views of professionals that treatment and appropriate education could be better sourced in the UK, or that efforts to bring him to the UK for these purposes had proved complicated because of his statelessness. Again, the decision-maker had been told that AC had been able to obtain a UK visa.[63]Based on the information that was available at the time, I cannot describe the Decision as Wednesbury unreasonable, even taking into account the “anxious scrutiny” standard that, according to CAO, the decision-maker was required to apply when considering the children’s circumstances. It was plainly open to the decision-maker to place more weight on the “normal” requirement that child applicants for citizenship under BNA s3(1) should have spent time in the UK with leave to remain and then obtained settled status. It was open to a reasonable decision maker, even having regard to the Claimants’ statelessness and the fact that grant of citizenship was in the Claimants’ best interests, to conclude that the detriment to the Claimants (as it appeared to be from the available materials) was insufficient, to require a different outcome, in particular given the lack of any evidenced intention to settle in the UK, the Claimants’ ability to enjoy family life with their parents in Kenya, the fact that the Claimants had each been able to obtain UK visas, and the possibility that other routes to British citizenship may open up in due course. Conclusion[64]For these reasons, the claim for judicial review is refused. It remains open to the Claimants, who are still under 18, to make a further application in reliance upon BNA s3(1). Any such application will be assessed by the Defendant as primary decision maker. I would observe though, for my part, that the account of the difficulties the Claimants face because of their statelessness that is given in their mother’s witness statements and exhibits seems to be far more comprehensive and compelling than the relatively brief accounts that were before the decision-maker in March 2025.