The respondent, Ms Kone, was represented by Patrick Lewis of Garden Court Chambers, instructed by Stefan Vnuk of Coram Children’s Legal Centre.
Patrick Lewis acted for Ms Kone in an appeal by the Home Office against an Upper Tribunal decision (JR-2023-LON-00270) which found the Home Office’s interpretation of paragraph 297(i)(f) of the Immigration Rules was wrong.
In July 2024, the Upper Tribunal granted a claim for judicial review and quashed a decision of the Secretary of State refusing the respondent, Ms Kone’s, application for indefinite leave to enter the UK pursuant to paragraph 297(i)(f).
In Kone, the Home Office argued that a child could not qualify under paragraph 297(i)(f) if one parent was present and settled and the other parent was present in the UK with limited leave, and that such a child could only obtain limited leave under Appendix FM, not indefinite leave under paragraph 297(i)(f). The Court of Appeal (before Lewison, Jackson and Lewis LJJ) upheld Upper Tribunal Judge Jackson’s decision.
Paragraph 297(i)(f) of the Immigration Rules provides that a child can obtain indefinite leave to enter if one of their parents is present and settled in the UK, and there are serious and compelling family or other considerations which make exclusion of the child undesirable. Paragraph 298(i)(d) makes equivalent provision in respect of in-country applications for indefinite leave to remain.
A child who meets the requirements of paragraph 297(i)(f) can obtain indefinite leave to enter, regardless of the location or immigration status of their non-settled parent.
Although Kone was concerned with paragraph 297(i)(f), the approach in Kone logically applies also to paragraph 297(i)(e) and paragraph 298(i)(c), where one parent is settled and has sole responsibility for the child’s upbringing. That is, after Kone, it should not be a bar to success under paragraph 297(i)(e) or 298(i)(c) if the child’s other parent (who, by definition, lacks any responsibility for the child) happens to be in the UK with limited leave.
The Court also clarified, contrary to the Home Office’s argument, that the question of whether there are “serious and compelling family or other considerations which make exclusion of the child undesirable” within the meaning of paragraph 297(i)(f) simply involves asking the question of whether the child’s exclusion from the UK, if were to occur, would be undesirable. The fact that the child will not in fact be excluded, because they have been or are being granted leave under another provision of the Rules, is simply not an answer to that question.
The Court accepted Counsel’s submission that the case was analogous to AB (Jamaica) v SSHD [2019] EWCA Civ 661 in this respect. Thus, even if the child in question has been or is being granted limited leave under Appendix FM, or some other provision of the Rules, this does not preclude their being granted indefinite leave if they can show that there are serious and compelling family or other considerations, which make the child’s exclusion undesirable.
Implications
This case is highly important, as it gives a significant number of children of parents who are in the UK (one of whom is settled), a potential pathway to immediate settlement, where, under the Home Office’s previous interpretation, they would have qualified only for limited leave. Immediate settlement can offer these children much-needed long-term security and stability, as well as saving significant sums of money on application fees, in circumstances where the child’s long-term future is highly likely to lie in the UK. That said, child applicants in these circumstances – with one settled and one non-settled parent – will still need to show that there are serious and compelling family or other considerations which make their exclusion undesirable, which is a high threshold.
Link to judgment (BAILII): Kone, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 1653
