Factual and Procedural Background
This appeal was brought by the Appellant against a decision of the Upper Tribunal dated 30 July 2024 which granted a claim for judicial review and quashed a decision of the Appellant dated 17 October 2023. The quashed decision had refused the Respondent's application for indefinite leave to enter the State pursuant to paragraph 297(i)(f) of the Immigration Rules and instead granted limited leave to enter under Appendix FM.
The Respondent was a child who, at the material time, was living outside the State. Her father was present and settled in the State and her mother had limited leave to remain in the State. The Respondent applied (from abroad) for indefinite leave to enter to join her father under paragraph 297(i)(f), which applies where "one parent or a relative is present and settled in the State ... and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care."
The Appellant refused the application on the basis that paragraph 297(i)(f) applied only where one parent was present and the other parent was absent from the State; because both parents were present in the State (one settled and one with limited leave), the Appellant considered paragraph 297(i)(f) inapplicable and granted the child limited leave under Appendix FM. The Respondent sought judicial review. The Upper Tribunal held that the Appellant had misinterpreted paragraph 297(i)(f) and carried out a normative assessment of the "exclusion undesirable" limb; it quashed the Appellant's decision. The Appellant obtained permission to appeal on three grounds challenging the Upper Tribunal's interpretation and reasoning.
Legal Issues Presented
- Whether the fact that entry clearance or leave to enter or remain has been granted is significant in deciding whether "there are serious and compelling family or other considerations which make exclusion of the child undesirable" for the purposes of paragraph 297(i)(f).
- Whether paragraph A277B requires that an application for indefinite leave to enter be considered before, and in priority to, whether to grant leave to enter or remain under Appendix FM.
- Whether paragraph 297(i)(f) is properly interpreted as applying only where one parent is present and the other parent is outside the State (i.e. whether the provision implicitly requires that only one parent be present in the State).
Arguments of the Parties
Appellant's Arguments (as advanced by Attorney Biggs)
- The words "one parent or relative is present and settled in the State" should be read as implicitly meaning that only one parent is present; if both parents are present in the State (one settled, one with limited leave) paragraph 297(i)(f) does not apply.
- Where a child intends to join both parents in the State (one settled, one with limited leave), the application should fall to be considered under Appendix FM for limited leave rather than under paragraph 297 for indefinite leave, to preserve policy coherence (the child should receive leave equivalent to the parent with the shortest leave).
- The fact that a child had been granted limited leave was a relevant factual consideration when assessing whether exclusion would be "undesirable" under paragraph 297(i)(f).
- Paragraph A277B and the transitional scheme meant that consideration of Appendix FM outcomes was relevant to assessments under Part 8.
Respondent's Arguments (as advanced by Attorney Lewis)
- The language of paragraph 297(i)(f) does not impose any requirement that the other parent be absent from the State; it is sufficient that one parent is present and settled.
- The question whether exclusion would be "undesirable" is a normative assessment and should be conducted independently of the fact that limited leave had been granted.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 |
Approach to construction of the Immigration Rules: rules to be construed sensibly according to natural and ordinary meaning, recognising they are statements of administrative policy rather than statutes. |
The court applied this approach as the proper starting point for interpreting paragraph 297(i)(f). |
| MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230 (cited in Mahad) |
Support for the proposition that immigration rules should be construed sensibly in their statutory and policy context. |
Used, via Mahad, to support the construction methodology applied to paragraph 297. |
| R (Wang) v Secretary of State for the Home Department [2023] UKSC 21; [2023] 1 WLR 2125 |
Confirmation that the sensible construction approach does not depart from general principles of statutory construction; consider words in context and purpose. |
The court relied on this to justify considering paragraph 297 in its context and purpose within Part 8. |
| TD (Yemen) v Secretary of State for the Home Department [2006] UKAIT 49 |
Explanation that the purpose of paragraph 297 is to maintain or effect family unity. |
The court accepted the Upper Tribunal's reliance on TD (Yemen) to show Part 8's objective of family unity when interpreting paragraph 297. |
| Runa v Secretary of State for the Home Department [2020] EWCA Civ 51; [2020] 1 WLR 3760 |
Statement that full background facts must be established against which the statutory question is addressed (as relied upon by the Appellant). |
The court treated Runa as supporting the need to establish relevant material facts but held that those are the facts relevant to the normative question; it did not accept that the grant of limited leave made the exclusion question irrelevant. |
| AB (Jamaica) v Secretary of State for the Home Department [2019] EWCA Civ 661; [2019] 1 WLR 4541 |
On section 117B(6) of the Nationality, Immigration and Asylum Act 2002: the court must consider whether, if the child were required to leave the State, that would be reasonable — the question must be answered even if the child will not in fact be removed. |
The court relied on AB (Jamaica) to support the proposition that the "exclusion undesirable" inquiry is normative and must be answered irrespective of whether the child has been granted other leave. |
Court's Reasoning and Analysis
The court applied the established approach to interpreting the Immigration Rules: construing the language sensibly and in context, with regard to purpose and the scheme as a whole (citing Mahad and R (Wang)).
On the language of paragraph 297(i)(f), the court identified three conjunctive requirements: (1) one parent or a relative is present and settled in the State (or being admitted for settlement); (2) there are serious and compelling family or other considerations which make exclusion of the child undesirable; and (3) suitable arrangements have been made for the child's care. The court concluded that the plain wording of subparagraph (f) requires only that one parent be present and settled; it does not contain any express or implicit requirement that the other parent must be absent from the State or not present and the court found no warrant for reading the word "only" into the provision.
The court rejected the Appellant's submission that paragraph 297 should be read so as to preclude a child from qualifying for indefinite leave where both parents are present in the State but one has only limited leave. The court found no basis in the text of paragraph 297 for that restriction, and observed that sub-paragraphs (a)–(e) contain express provisions about the other parent's situation where that is intended, whereas (f) does not.
In addressing the Appellant's coherence/policy arguments (including references to paragraph 301 and Appendix FM), the court held that (i) a child may be eligible for more than one type of leave and may choose to apply for the status sought; (ii) Part 8 and Appendix FM set out different eligibility conditions and do not establish a rule that a shorter form of leave must be considered in priority to an application for indefinite leave; and (iii) there was nothing in the transitional provisions or paragraph A277B that required the Secretary of State to consider or give priority to Appendix FM before paragraph 297.
Concerning the "exclusion undesirable" limb, the court agreed with the Upper Tribunal that the assessment is normative rather than purely factual: the correct question is whether, if the child were excluded, that exclusion would be undesirable. The court analogised this to the section 117B(6) formulation considered in other caselaw and rejected the Appellant's argument that the prior grant of limited leave rendered the exclusion question irrelevant. The court concluded the Appellant should assess whether exclusion would be undesirable, independently of whether the child had been granted limited leave in the meantime.
The court noted that the Upper Tribunal had erred in its interpretation of paragraph A277B, because that paragraph relates to limited or indefinite leave to remain rather than leave to enter; however, the court found that any error on that point was not material to the primary interpretation and outcome.
Holding and Implications
HOLDING: The court dismissed the appeal and upheld the decision of the Upper Tribunal that the Appellant had erred. The court held that a child may apply for indefinite leave to enter under paragraph 297(i)(f) if the child has one parent present and settled in the State (even if the other parent is present and has limited leave to remain) and satisfies the other requirements of that paragraph.
Implications: The direct effect is that the Appellant's decision of 17 October 2023 refusing indefinite leave to enter on the grounds stated was quashed and the Upper Tribunal's grant of judicial review was correct. The court treated the "exclusion undesirable" assessment as a normative question to be answered regardless of an intervening grant of limited leave. The opinion focused on applying established interpretive principles to the Immigration Rules; it did not purport to create a novel general rule beyond that interpretation and analysis of the provisions before the court.
Judge Jackson, Judge Lewis and Judge Lewison gave reasons concurring with the result.