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Upper Tribunal considers lawfulness of granting Discretionary Leave to a child

The Upper Tribunal considers Home Office policy on what length of leave to grant to a child in the case of R (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) IJR [2015] UKUT 561 (IAC). The case descends into an argument around the Edgehill, Singh etc fiasco and which set of rules and policies apply and, unlike in the case of SM, where applications for ILR had been made, the applicant child in this case had applied for and (unsurprisingly) received Discretionary Leave.

The headnote:

(1) The decision of the High Court in R (SM & Others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) relating to the 2009 Discretionary Leave policy and instruction only applies to cases where the decision to grant leave to remain was made prior to 24 June 2013.

(2) There is no obligation on the Secretary of State to grant ILR or to consider granting ILR in circumstances where no formal application for ILR has been made.

(3) It is legitimate for the Secretary of State to grant leave to remain for 30 months on an application that is decided on or after 9 July 2012 irrespective of when the application was made unless it was made between 9 July 2012 and 6 September 2012: see para [56] of Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74.


Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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