OBN (a minor), R (on the application of) v The Secretary of State for the Home Department
[2024] EWHC 1833 (Admin)
Y (Failure to Clarify Immigration Status), Re
1 July 2024
[2024] EWFC 159
Family Court
A family court case involved a child's uncertain immigration status. The judge said the court couldn't directly tell the government to give the child citizenship because that's not the court's job. The court *could* share information to help the family apply for citizenship, but the final decision rests with the government.
Key Facts
- •Application concerning the immigration status of Y, a 4-year-old child.
- •Y's special guardian (maternal aunt) seeks an order for Y's British citizenship or an emergency travel document.
- •Previous care proceedings resulted in a Special Guardianship Order (SGO) in December 2022, with an expectation that Y's immigration status would be regularized.
- •Y's application for a British passport was refused due to insufficient evidence of entitlement.
- •Y's mother's immigration status is unclear, and her father's whereabouts are unknown.
- •The applicant argues the SGO is indirectly breaching her human rights due to Y's statelessness and inability to travel to see her ill grandmother.
Legal Principles
The court should not make orders that impinge upon the Secretary of State's powers regarding immigration.
Re Mohamed Arif (An Infant); Nirbai Singh (An Infant) [1968] Ch 643, R v Secretary of State for the Home Department ex parte T [1995] 1 FLR 293, Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), R (Anton) v Secretary of State for the Home Department; Re Anton [2005] 2 FLR 818, S v S [2008] EWHC 2288 (Fam)
Using court jurisdiction to influence the Secretary of State's immigration decisions is an abuse of process.
R v Secretary of State for the Home Department ex parte T [1995] 1 FLR 293, Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), R (Anton) v Secretary of State for the Home Department; Re Anton [2005] 2 FLR 818, S v S [2008] EWHC 2288 (Fam)
The court can express requests and opinions to the Secretary of State, but not to the extent of influencing immigration decisions.
Akhtar v Ayoub [2013] EWHC 3840 (Fam)
Section 14C of the Children Act 1989 outlines the effects of a Special Guardianship Order, including restrictions on removing a child from the UK.
Children Act 1989, s.14C
Section 3(1) of the British Nationality Act 1981 grants the Secretary of State discretion to register a child as a British citizen.
British Nationality Act 1981, s.3(1)
Immigration status issues should be addressed at the outset of care proceedings.
Re B (Children: Abduction: Consent: Oral Evidence: Art 13(b)) [2023] Fam 77, FPR PD12A
Outcomes
The court permitted disclosure of care proceedings documents to the Secretary of State and Passport Office.
To assist with a future application for British citizenship under the British Nationality Act 1981.
The court refused to include recitals requesting the Secretary of State grant Y British citizenship or summarize the court's intentions in the December 2022 order.
This would be an impermissible attempt to influence the Secretary of State's decision and an abuse of process.
The applicant's application (aside from the disclosure order) was dismissed.
The court's powers are limited, and attempting to influence immigration decisions is improper.
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