Immigration Rules part 8: family members currently preserve paragraphs 297 – 300 with some additional requirements by reference to Appendix FM. This is a different immigration route to Appendix FM, which is open to child applicants and can lead to immediate settlement in the first instance as opposed to the shorter permission to stay granted under Appendix FM.
Although applicable to relatives, paragraphs 297 – 300 are generally utilised by children with parents who are either both present or settled in the UK or being admitted for settlement in the United Kingdom. Paragraph 297 deals with indefinite leave to enter and Paragraph 298 with indefinite leave to remain.
Paragraph 297(i)(f): Indefinite leave to enter for children with a settled parent
The relevant Rule is:
- The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
…
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement 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; and
…
By reference to paragraph 297(i)(f), the Court of Appeal has made an important ruling clarifying that children with only one parent present and settled in the United Kingdom are entitled to apply for indefinite leave to enter. The Court also confirmed that whether an application is made under Appendix FM or paragraph 297 (i)(f) of Part 8 of the Immigration Rules, is the decision of the child applicant and not the Home Office. It is not open to the Home Office to decide an application under Appendix FM and exclude it from paragraph 297 only because one parent has limited leave. It does not matter what the status of the other parent is. The simple requirement is that one parent is present and settled.
The case is R (Kone) v Secretary of State for the Home Department [2025] EWCA Civ 1653. The Court of Appeal dismissing the SSHD’s appeal on all grounds held:
- Sub-paragraph (f) sets out the three circumstances that must be satisfied for that sub-paragraph to be satisfied. They are that (1) “one parent or a relative is present and settled in the United Kingdom” or is being admitted for settlement and (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.
- First, as a matter of language, a child seeking indefinite leave to enter will satisfy the first of those circumstances if one parent is present and settled in the United Kingdom. The subparagraph does not impose any requirements in relation to the other parent (i.e. whether that parent has to be settled or have limited leave to remain in the United Kingdom or must not be in the United Kingdom). It is sufficient if one parent is present and settled.
The Court of Appeal also rejected the argument that the child applicant should only be granted the shortest leave enjoyed by one of the parents (an approach successfully adopted by the Home Office with respect to dependent children in work routes). In simple terms, where one of two parents have limited leave, the child too should be granted limited leave irrespective of an application being made for indefinite leave to enter. The Court of Appeal in clear terms held:
- I do not accept that argument either. First, a child may be able to meet the requirements under the Immigration Rules for the grant of more than one status – e.g. indefinite leave to enter, and limited leave. It is a matter for the child to determine whether he wishes to apply for indefinite leave (or limited leave only) and the role of the Secretary of State is to determine whether the child meets the requirements for the grant of the type of leave for which the child has applied. Part 8 of the Immigration Rules does not require the Secretary of State to consider, and give priority to, a shorter type of leave than was actually applied for.
- … In particular, there is nothing to suggest that a child is precluded from applying for indefinite leave to enter under paragraph 297(i)(f) simply because he could apply for limited leave under Appendix FM. There is nothing to suggest that the Secretary of State may, or must, consider whether to grant limited leave under Appendix FM before considering the application for indefinite leave made under paragraph 297(i)(f).
With respect to the second limb of paragraph 297(i)(f), that there are serious and compelling family or other considerations which make exclusion of the child undesirable, the Court of Appeal held the immigration status of a child applicant is irrelevant. The focus is on whether the exclusion of a child from the United Kingdom would be undesirable.
- The question that this part of paragraph 297(i)(f) requires the Secretary of State to answer is whether, if the respondent were to be excluded, would that be undesirable?
- In those circumstances, the fact that the child has been granted limited leave to remain is simply not a relevant fact. The immigration status of the applicant is not an issue to be considered. The sole issue is whether the child’s exclusion from the United Kingdom, if were to occur, would be undesirable. No one, least of all the Secretary of State, has suggested that the answer to that question is anything other than that it would be undesirable if this respondent were excluded.
Paragraph 298: Indefinite leave to remain for children with a settled parent
The relevant Rule is:
- The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:
…
(d) one parent or a relative is present and settled in the United Kingdom 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; and
…
Whilst R (Kone) focuses on paragraph 297(i)(f) of Part 8, paragraph 298(i)(d) contains an identical provision for children who are already in the UK. This potentially opens doors for child applicants to apply for settlement within the UK who are on a five or ten year route to settlement. This impacts various children who are generally the dependents of a parent with limited leave, whilst other family members, particularly the other parent, may be enjoying settlement or nationality.
With the frequent evolution of the Immigration Rules, it remains to be seen how long paragraphs 297(i)(f) and 298(i)(d) will remain in force. For now, the Court of Appeal has provided a key ruling on how settlement applications by children should be considered. Immediate or earlier settlement can positively impact a child or young adult’s sense of integration, belonging and present or future educational needs. The Court of Appeal’s guidance is indeed welcomed.
If you are the settled parent of a child or a young adult impacted by this judgement, contact one of our experts to discuss your options and how this decision may impact you.
