Kone v Secretary of State for the Home Department [2025] EWCA Civ 1653:
Paragraph 297(i)(f) Applies Where One Parent Is Settled Even If the Other Has Limited Leave, and “Exclusion” Is a Normative Test

1. Introduction

This commentary examines the Court of Appeal’s decision in Kone, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 1653, a judgment that clarifies two important aspects of the Immigration Rules:

  • The scope of paragraph 297(i)(f) of the Immigration Rules governing children’s applications for indefinite leave to enter (“ILE”) as family members; and
  • The proper interpretation of the phrase “serious and compelling family or other considerations which make exclusion of the child undesirable”.

The case arises from the refusal by the Secretary of State to grant the respondent, Ms Kone, ILE as a child under paragraph 297(i)(f). Instead, she was granted limited leave under Appendix FM on the basis of her mother’s limited leave. The Upper Tribunal (UT) granted judicial review and quashed the refusal. The Secretary of State appealed on three grounds. The Court of Appeal (Lewis LJ giving the main judgment, with Jackson LJ and Lewison LJ agreeing) dismissed the appeal.

The decision is significant because it:

  • Rejects the Home Office’s long‑asserted practice that a child joining two parents must always be given leave in line with the lesser immigration status of the parents;
  • Confirms that paragraph 297(i)(f) is available to a child where at least one parent is present and settled in the UK, even if the other parent is in the UK with only limited leave; and
  • Holds that the “exclusion undesirable” test is a normative (hypothetical) assessment: the fact that the child has already been granted limited leave is irrelevant to whether exclusion would be undesirable.

2. Background and Key Issues

2.1 Factual background

The respondent, Ms Kone, is an Ivorian national born on 16 October 2002. Her father is a British citizen, present and settled in the UK; her mother held limited leave to remain in the UK.

Key factual milestones:

  • 2015: She applied to join her father in the UK. The First‑tier Tribunal (FTT) in August 2017 accepted that her father was present and settled and her mother had limited leave, and found “persuasive and powerful” circumstances justifying her joining the family. However, the appeal was dismissed because she lacked a mandatory tuberculosis test certificate.
  • 2018: Having obtained the test certificate, she reapplied on 3 October 2018 for indefinite leave to enter for settlement under paragraph 297, naming her father (a British citizen) as sponsor.
  • 2019: On 18 June 2019, the application for ILE under paragraph 297 was refused, but she was granted limited leave to enter until 26 September 2021 under Appendix FM, tied to her mother’s limited leave. She entered the UK in July 2019.
  • Judicial review and reconsideration: She challenged the 2019 decision. By consent order dated 16 June 2023, the judicial review was withdrawn on the basis that the Secretary of State would reconsider her application for settlement and issue a new decision.
  • October 2023: On reconsideration (decision letter 17 October 2023), the Secretary of State again refused ILE under paragraph 297 but maintained limited leave under Appendix FM, citing a policy of granting children leave “in line with the parent who has the least leave.”

2.2 The three grounds of appeal

The Secretary of State appealed the UT’s decision on three grounds:

  1. That the UT erred in holding that the grant of entry clearance or leave (limited leave under Appendix FM) was not significant to deciding whether there were serious and compelling considerations making exclusion undesirable;
  2. That the UT misinterpreted paragraph A277B of the Immigration Rules as requiring consideration of ILE under Part 8 (paragraph 297) before, and in preference to, limited leave under Appendix FM;
  3. That the UT erred in holding that paragraph 297(i)(f) applies in circumstances where both parents are present in the UK.

The Court of Appeal considered Ground 3 first (the scope of paragraph 297(i)(f)), then Ground 1 (the “exclusion” test), and finally Ground 2 (A277B).

3. Summary of the Judgment

3.1 Main holdings

The Court of Appeal dismissed the Secretary of State’s appeal. Its core conclusions were:

  1. Paragraph 297(i)(f) applies where at least one parent is present and settled in the UK, even if the other parent is also in the UK with limited leave. There is no implied requirement that only one parent be present in the UK, nor that the other parent be outside the UK. (Ground 3 dismissed.)
  2. The requirement that there be “serious and compelling family or other considerations which make exclusion of the child undesirable” involves a normative question: whether it would be undesirable if the child were excluded. The fact that the child has been granted limited leave, and so will not currently be excluded, is irrelevant. (Ground 1 dismissed.)
  3. The UT did misinterpret paragraph A277B, because it applies to applications for leave to remain, not entry clearance / leave to enter. However, that error was immaterial to the outcome. (Ground 2 dismissed.)

3.2 Outcome

The Court held that:

  • The UT was right to find that the Secretary of State had misinterpreted paragraph 297(i)(f);
  • The decision of 17 October 2023 refusing ILE under paragraph 297 was unlawful; and
  • The appeal by the Secretary of State must be dismissed, leaving the UT’s quashing order intact.

4. Legislative and Policy Framework

4.1 Statutory basis and Immigration Rules

  • Under section 3(1) of the Immigration Act 1971, non‑British citizens require leave to enter or remain in the UK.
  • Under section 3(2), the Secretary of State must lay before Parliament Immigration Rules, which articulate the policy governing admission and stay.

4.2 Part 8 and Appendix FM

Historically, Part 8 of the Immigration Rules dealt with family members, including children. From 9 July 2012, Appendix FM took over most family migration provisions. Paragraph A277 provides that Appendix FM applies to applications that would otherwise have been under Part 8, “except where the provisions of Part 8 are preserved”.

Paragraph 297 is one such preserved provision. It governs applications by children for indefinite leave to enter to join a parent, parents or relative who is present and settled (or being admitted for settlement).

4.3 Paragraph 297: structure

Paragraph 297 sets out cumulative requirements for a child seeking ILE, including that:

  • (i) they seek to accompany or join a parent, parents or relative in specific scenarios;
  • (ii) they are under 18;
  • (iii) not leading an independent life, unmarried, no independent family unit;
  • (iv) adequate accommodation without recourse to public funds;
  • (vi) adequate maintenance without recourse to public funds; and
  • (v) no refusal under general grounds.

Sub‑paragraph (i) is central. It lists six alternative family configurations:

  • (a) both parents present and settled;
  • (b) both parents being admitted for settlement on the same occasion;
  • (c) one parent present and settled and the other being admitted for settlement;
  • (d) one parent present and settled and the other is deceased;
  • (e) one parent present and settled and that parent has had sole responsibility; and
  • (f) one parent or a relative is present and settled (or being admitted for settlement) and there are serious and compelling family or other considerations which make exclusion undesirable, with suitable care arrangements.

This case turns on the meaning and scope of sub‑paragraph (f).

4.4 Paragraph 301 (historical) and Appendix FM

Paragraph 301 (now largely superseded) governed limited leave to enter or remain for children where the parent(s) had limited leave with a view to settlement. It included:

  • 301(i)(a): child joining a parent who is present and settled and the other parent has limited leave with a view to settlement; and
  • 301(i)(c): child joining a parent who has or is being given limited leave with a view to settlement, where there are serious and compelling considerations making exclusion undesirable.

Applications for children’s limited leave are now covered by Appendix FM (for example, sections EC‑C and E‑LTRC).

4.5 Paragraph A277B

Paragraph A277B (a transitional provision within Part 8) provides that where the Secretary of State is considering an application for limited or indefinite leave to remain under Part 8 and the applicant does not meet the requirements for indefinite leave but does meet those for limited leave, the application will also be considered under the relevant Appendix FM provisions.

Critically, as the Court of Appeal emphasised, A277B concerns leave to remain (in‑country), not entry clearance / leave to enter.

5. Detailed Analysis

5.1 Ground 3 – The Proper Interpretation of Paragraph 297(i)(f)

5.1.1 The parties’ arguments

Secretary of State’s position (Mr Biggs):

  • The phrase “one parent or a relative is present and settled” in paragraph 297(i)(f) should be read as implicitly meaning “only one parent is present and settled”.
  • Where the child is joining both parents in the UK, one with settled status and the other with limited leave, the application properly falls under Appendix FM for limited leave, with leave granted in line with the parent who has the shortest leave.
  • Allowing use of paragraph 297(i)(f) in such circumstances would undermine what was described as a coherent policy of granting leave “in line with the parent who has the least leave” and would provide a “shortcut to settlement”.

Respondent’s position (Mr Lewis):

  • The wording of paragraph 297(i)(f) requires only that one parent be present and settled. There is no textual basis for implying that the other parent must be outside the UK, or must not have limited leave here.
  • The paragraph should be given its “natural and ordinary meaning”, in line with the approach in Mahad and Wang, read in the context of the Rules as a whole.

5.1.2 The Court’s interpretive approach

Lewis LJ reaffirmed the orthodox approach to interpreting Immigration Rules:

  • Mahad v ECO [2010] 1 WLR 48: Rules should be construed “sensibly according to the natural and ordinary meaning” of the words used, in their context, recognising that they state the Secretary of State’s administrative policy, not primary legislation.
  • R (Wang) v SSHD [2023] 1 WLR 2125: this approach does not differ in any substantial way from standard statutory interpretation; one must look at the language, context, and underlying purpose.

5.1.3 Language of paragraph 297(i)(f)

On the wording itself, the Court held:

  • The first limb of 297(i)(f) is satisfied where “one parent is present and settled in the UK”.
  • The sub‑paragraph does not impose any condition regarding the status or location of the other parent. It neither requires the other parent to be absent from the UK nor prohibits them from having limited leave in the UK.
  • This stands in contrast to sub‑paragraphs (a)–(e), where the status and location of both parents are expressly regulated (e.g. both present and settled, one dead, one with sole responsibility).
  • Had it been intended that paragraph 297(i)(f) only applies where only one parent is in the UK, one would expect express wording to that effect.

Therefore, as a matter of ordinary language, a child like the respondent—whose father is present and settled and whose mother is present with limited leave—meets the first limb of paragraph 297(i)(f).

5.1.4 Context and purpose: family unity

The Court considered context, including TD (Yemen) v SSHD [2006] UKAIT 49, in which the AIT stated that paragraph 297 is “designed to maintain or effect family unity”. Lewis LJ agreed with this broad characterisation (while cautioning that the rest of TD concerned a different sub‑paragraph and factual matrix).

This purpose of promoting or maintaining family unity is important in two ways:

  • It supports a reading that allows a child to obtain settlement where one parent is settled and serious and compelling reasons exist, even if another parent has limited leave.
  • It undermines the Secretary of State’s argument that a child should be disadvantaged (barred from settlement) simply because they have a second parent in the UK with limited leave.

Lewis LJ gave examples of the perverse consequences that would flow from the Secretary of State’s interpretation:

  • A child could secure ILE if their only parent in the UK is settled, but would be denied ILE if another parent is present with limited leave—even if that parent has little or no real role in the child’s life.
  • A child might be “better off” in immigration terms if the parent with limited leave left the UK, because only then could the child qualify under paragraph 297(i)(f).

Such outcomes are plainly inconsistent with a policy centred on family unity and the best interests of the child.

5.1.5 Relationship with paragraph 301 and Appendix FM

The Secretary of State argued that a coherent reading of the Rules requires that a child joining both parents (one settled, one with limited leave) should receive only limited leave, pointing to:

  • Paragraph 301(i)(a): child is eligible for limited leave where one parent is present and settled and the other has limited leave; and
  • Appendix FM: provisions granting children leave in line with a parent with limited leave.

Lewis LJ rejected this:

  1. Multiple potential routes: The Rules envisage that an applicant may satisfy the criteria for more than one kind of leave (e.g. both ILE and limited leave). There is nothing in Part 8 requiring the Secretary of State to prioritise a shorter form of leave when the applicant has expressly applied for ILE under paragraph 297.
  2. Different conditions: Paragraphs 297 and 301 regulate different factual situations and impose different conditions. Under 297(i)(f), a child must show serious and compelling reasons making exclusion undesirable. Under 301(i)(a), a child could obtain limited leave without meeting such a stringent test. The availability of limited leave in one scenario does not negate the availability of ILE under another, more demanding, rule.
  3. Transitional regime: Appendix FM did not exist when paragraph 297 was made. The transitional provisions expressly preserve paragraph 297 and do not make it subordinate to Appendix FM. There is no textual basis to say a child is barred from seeking ILE because they could seek limited leave under Appendix FM.
  4. No “shortcut to settlement” policy in the Rules: The Court rejected the notion that paragraph 297 was never meant to allow such “shortcuts”. That policy is not found in the text or discernible purpose of the Rules. A child seeking ILE under paragraph 297 is simply invoking one of the available lawful routes.

Jackson LJ reinforced this analysis, criticising the Home Office’s repeated assertion that “we issue children in line with the parent who has the least leave” as being unsupported by the wording of the Rules and incoherent in child welfare terms.

5.1.6 Conclusion on Ground 3

The Court held that:

  • On the proper interpretation of paragraph 297(i)(f), a child qualifies to apply for ILE if they have one parent present and settled in the UK (even if the other parent is in the UK with limited leave), provided the other requirements (serious and compelling considerations, etc.) are met.
  • The UT’s construction was correct; the Secretary of State’s restrictive interpretation was rejected.

5.2 Ground 1 – “Serious and Compelling” and the Relevance of Limited Leave

5.2.1 The issue

The question under this ground was how to interpret the phrase:

“serious and compelling family or other considerations which make exclusion of the child undesirable”

Specifically, could the Secretary of State argue that because the respondent had been granted limited leave to enter/remain, she was not, as a matter of fact, being “excluded”, so the requirement was not satisfied?

5.2.2 The Court’s answer: a normative test

Lewis LJ held that the test is normative, not factual:

  • The decision-maker must ask: if the child were excluded from the UK, would that exclusion be undesirable?
  • The fact that the child currently holds limited leave does not answer (or negate) this normative question.

Put differently, the “exclusion undesirable” limb is a hypothetical assessment about the consequences of denying the child the ability to live in the UK with their parent(s), not a test of whether the child is actually being removed or barred at the moment of decision.

5.2.3 Analogy with section 117B(6) NIAA 2002 – AB (Jamaica)

The Court drew a close analogy with section 117B(6) of the Nationality, Immigration and Asylum Act 2002, which states that the public interest does not require removal of a person where they have a genuine and subsisting parental relationship with a qualifying child and:

“it would not be reasonable to expect the child to leave the United Kingdom”.

In AB (Jamaica) v SSHD [2019] EWCA Civ 661, the Secretary of State had advanced an argument similar in structure: that the reasonableness test does not arise if, as a matter of fact, the child will not leave the UK. The Court of Appeal (Singh LJ) rejected that, holding that one must ask whether it would be reasonable to expect the child to leave, if they were required to do so, regardless of what is predicted actually to occur in practice.

Lewis LJ applied the same logic here: similarly, one cannot evade the “exclusion undesirable” test by saying that the child will not, in practice, be excluded because they have limited leave. The decision-maker must still address the normative question.

5.2.4 Runa and the relevance of background facts

Mr Biggs relied on Runa v SSHD [2020] EWCA Civ 51, arguing that the “full background facts” should be taken into account in answering the statutory question. Lewis LJ accepted that one must consider all material facts—where the child is living, who is caring for them, the strength of family ties, etc.—but only insofar as those facts assist in answering the normative question:

Would exclusion be undesirable in light of these circumstances?

The fact that the Secretary of State had chosen to grant limited leave is not one of the relevant background facts for that normative evaluation; it is instead the outcome of a separate decision on another legal route.

5.2.5 The specific procedural context

Lewis LJ added a further, case‑specific reason why the grant of limited leave could not be relied upon:

  • The respondent’s original application (from abroad) was for ILE under paragraph 297.
  • The Secretary of State had instead chosen to grant limited leave under Appendix FM, which was not the form of leave for which she had applied.
  • In the consent order settling the earlier judicial review, the Secretary of State agreed to reconsider the application for settlement, i.e. to reconsider the paragraph 297 application on its own merits.
  • It would undermine that agreement entirely if, on reconsideration, the Secretary of State could simply assert that, because they had previously granted limited leave, the child could never meet paragraph 297(i)(f). That would render the “reconsideration” illusory.

5.2.6 Conclusion on Ground 1

For both general and case‑specific reasons:

  • The grant of limited leave is not a relevant consideration in deciding whether there are serious and compelling family or other considerations making exclusion undesirable; and
  • In this case, the Secretary of State was bound to answer the normative question, which on any view must have led to the conclusion that exclusion would be undesirable for a 16‑year‑old with both parents in the UK and only a precarious arrangement abroad.

Ground 1 was therefore dismissed.

5.3 Ground 2 – Misinterpretation of Paragraph A277B

5.3.1 The UT’s error

The UT had reasoned that under paragraph A277B the Secretary of State was required to:

  1. First, decide whether the applicant meets the requirements for limited or indefinite leave under Part 8; and
  2. Only if not, then consider the application under Appendix FM.

Both parties in the Court of Appeal agreed that this interpretation was wrong. A277B concerns applications for leave to remain under Part 8, not applications for entry clearance / leave to enter like the respondent’s.

5.3.2 Why the error was immaterial

However, Lewis LJ held that this misinterpretation did not affect the ultimate outcome:

  • The UT’s reliance on A277B was merely an additional support for its conclusion about the proper reading of paragraph 297(i)(f).
  • The Court of Appeal considered that, even without A277B, the UT’s construction of 297(i)(f) was correct for the reasons already given (language, context, purpose).

Accordingly, although Ground 2 identified a real error, it could not lead to the appeal being allowed because the error was not material.

6. Precedents and Authorities Considered

6.1 Mahad v Entry Clearance Officer [2010] 1 WLR 48

Cited for the principle that Immigration Rules are to be interpreted:

  • according to their natural and ordinary meaning;
  • in their context; and
  • with regard to their function as statements of administrative policy.

The Court used this framework to reject the Secretary of State’s attempt to read in the word “only” to paragraph 297(i)(f).

6.2 R (Wang) v SSHD [2023] 1 WLR 2125

Wang confirms that the Mahad approach aligns with general principles of statutory construction: language, context and purpose must all be considered. Lewis LJ cited this to indicate that there is no special rule of strained construction for Immigration Rules that could justify importing requirements not present in the text.

6.3 TD (Yemen) v SSHD [2006] UKAIT 49

This Upper Tribunal decision was relied upon for the proposition that paragraph 297 is designed to maintain or effect family unity. The Court accepted this as correctly describing the broad purpose of the provision, though care must be taken in applying TD’s detailed observations because it dealt with a different sub‑paragraph ((i)(e)) and different facts.

6.4 AB (Jamaica) v SSHD [2019] 1 WLR 4541

AB (Jamaica) concerned the proper construction of section 117B(6) NIAA 2002 and its “would not be reasonable to expect the child to leave the United Kingdom” test. The Secretary of State in that case argued that the question of reasonableness did not arise if the child would, in fact, remain in the UK. The Court (Singh LJ) rejected that, holding that the question is inherently hypothetical and must be answered.

Kone applies this reasoning by analogy to the phrase “exclusion undesirable” in paragraph 297(i)(f), reinforcing the normative nature of the test.

6.5 Runa v SSHD [2020] 1 WLR 3760

Runa concerned the importance of establishing all relevant background facts before applying a statutory test. Lewis LJ accepted this general principle but emphasised that “background” must be confined to facts relevant to the specific normative question. The grant of limited leave is not such a fact in relation to whether exclusion would be undesirable.

7. Complex Concepts Explained

7.1 Indefinite leave to enter vs limited leave

  • Indefinite leave to enter (ILE): Permission to enter the UK with no time limit attached. Functionally equivalent to Indefinite Leave to Remain (ILR) but granted before entry.
  • Limited leave: Time‑limited permission (often 30 months or similar) granted under routes such as Appendix FM. It can be extended and may eventually lead to settlement, but is inherently more precarious.

In this case, the respondent sought ILE under paragraph 297 but was instead granted limited leave tied to her mother’s status.

7.2 “Present and settled”

Although not spelled out in the judgment, under the Rules a person is generally:

  • “Present” if physically in the UK; and
  • “Settled” if ordinarily resident in the UK without any time limit on their stay— typically a British citizen or someone with ILR.

Paragraph 297 focuses on children seeking to join a parent or relative who is “present and settled” or being admitted for settlement.

7.3 “Serious and compelling family or other considerations”

This phrase, which appears in multiple places in the Rules (paragraphs 297, 298, 301 and Appendix FM), requires a high threshold. It is not enough that it would be merely inconvenient or undesirable for the child to remain abroad. Rather, there must be circumstances that are:

  • Serious – of real gravity; and
  • Compelling – exerting pressure in favour of admission such that refusal would be hard to justify.

Typical factors include the death or incapacity of a primary carer abroad, the lack of any suitable caregiver, or strong emotional and dependency ties with the parent(s) in the UK, among others. In this case, the FTT had already found “persuasive and powerful” circumstances justifying the child’s admission, a finding consistent with this threshold.

7.4 Normative vs factual tests

A factual test asks: what is actually happening? For example, “Is the child currently outside the UK?”

A normative test asks a hypothetical question about what ought to happen or what the impact of a scenario would be, regardless of whether that scenario will actually unfold. For example:

  • “Would it be reasonable to expect the child to leave the UK?” (section 117B(6));
  • “Would exclusion of the child from the UK be undesirable?” (paragraph 297(i)(f)).

The Court in Kone confirms that “exclusion undesirable” is a normative test of this kind.

7.5 Relationship between Part 8 and Appendix FM

In simplified terms:

  • Part 8 (including paragraph 297): older family migration rules, some of which are preserved, mainly dealing with settlement scenarios.
  • Appendix FM: newer, more comprehensive family migration framework, particularly for limited leave on family and private life grounds.
  • Transitional provisions (A277, A277B, A280 etc.): specify how and when Appendix FM applies alongside Part 8, and which parts of Part 8 continue in force.

Kone confirms that:

  • Paragraph 297 continues to operate as an independent route to ILE for children; and
  • There is no requirement that the Secretary of State must first consider, or prefer, limited leave under Appendix FM where a child has a viable application for ILE under paragraph 297.

8. Impact and Future Significance

8.1 Impact on Home Office policy and practice

The judgment directly undermines the Home Office’s practice (articulated in the decision letter) of issuing children leave “in line with the parent who has the least leave” where they are joining two parents. After Kone:

  • The Secretary of State cannot lawfully refuse to consider a child’s application for ILE under paragraph 297(i)(f) on the basis that:
    • both parents are in the UK; or
    • one parent only has limited leave; or
    • the child could instead be granted limited leave under Appendix FM.
  • Policy guidance and decision‑maker training will need to be revised to recognise that:
    • paragraph 297(i)(f) is available where at least one parent is settled and serious and compelling considerations exist; and
    • the grant or availability of limited leave is irrelevant to the “exclusion undesirable” limb.

8.2 Impact on litigation and advice in children’s cases

For practitioners, Kone provides a powerful authority that:

  • Children with one settled parent and another parent with limited leave can seek direct settlement under paragraph 297(i)(f), not merely limited leave under Appendix FM.
  • Where serious and compelling circumstances exist (e.g. breakdown of care abroad, strong dependency on UK parents), it may be strategically advantageous to proceed under paragraph 297(i)(f) rather than Appendix FM, or to argue both in the alternative.
  • Decision‑makers cannot decline to apply the “exclusion undesirable” test simply because limited leave has been or could be granted. The test must be answered.

8.3 Clarification of normative tests across immigration law

Kone consolidates a broader line of authority (including AB (Jamaica)) on normative tests in immigration law:

  • It confirms that phrases such as “reasonable to expect the child to leave” and “exclusion undesirable” are forward‑looking evaluative questions, not questions that can be sidestepped by focusing on the current or predicted factual outcome.
  • This may influence future arguments in cases involving section 117B(6), Appendix FM provisions using similar language, and other norms that require assessing the child’s best interests and the public interest.

8.4 Reinforcement of family unity and child welfare considerations

Both Lewis LJ and Jackson LJ emphasise the coherence of paragraph 297 with the underlying aim of maintaining family unity and, more broadly, with the welfare of children affected by immigration decisions. While section 55 of the Borders, Citizenship and Immigration Act 2009 is not directly central to the ratio, Jackson LJ expressly notes that:

  • For a child living, or to be living, with a settled parent, requiring them to share the tenuous immigration status of a non‑settled parent “makes no apparent sense in child welfare terms”.

The judgment thus aligns the interpretation of the Rules with the broader child‑centred approach mandated by section 55 and international obligations, even where those do not apply directly to the individual case at the time of application.

9. Conclusion

Kone v Secretary of State for the Home Department is a significant clarification of children’s rights under paragraph 297(i)(f) of the Immigration Rules and an important check on administrative over‑reach within the Home Office.

The key takeaways are:

  • Scope of paragraph 297(i)(f): A child may apply for and be granted ILE under paragraph 297(i)(f) where one parent is present and settled in the UK, even if the other parent is also in the UK with limited leave. There is no “only one parent” requirement, and no implicit rule that settlement is unavailable if a second parent has limited leave.
  • Normative nature of “exclusion undesirable”: The test requires a hypothetical assessment of whether exclusion would be undesirable, taking into account all relevant personal and family circumstances. The grant or availability of limited leave is irrelevant to that question.
  • No hierarchy preferring limited leave over ILE: Where a child applies under paragraph 297, the Secretary of State must decide that application according to its own terms. The existence of a possible Appendix FM route does not displace the entitlement to be considered for ILE under paragraph 297.
  • Family unity and child welfare: The judgment reinforces the centrality of family unity and the best interests of the child in interpreting family migration provisions.

In practical terms, Kone will require the Home Office to abandon the unsupported practice of always aligning a child’s leave with the “least leave” of their parents, and it gives practitioners a strong doctrinal basis to seek settlement for children with one settled parent where the serious and compelling test is met.