Court of Appeal Expands Settlement Rights for Children in R (Kone) v SSHD

The Court of Appeal has handed down an important judgment in R (Kone) v Secretary of State for the Home Department, reshaping how settlement applications for children are assessed under the UK Immigration Rules. The decision clarifies when a child may be granted indefinite leave to enter the UK, even where their parent holds only limited leave to remain in the UK.

This ruling has significant implications for families applying for a child settlement visa, particularly under Appendix FM immigration rules, and reinforces the principle that the welfare of the child is paramount. It will be especially relevant to parents seeking to apply for settlement status for a child where long-term stability is a key concern.

A major shift in child settlement rules

Historically, children applying for settlement were expected to mirror their parent’s immigration status. Where a parent held limited leave to remain, the child would normally be granted limited leave to remain in the UK, rather than immediate settlement.

The Kone judgment marks a shift away from this rigid approach. The Court of Appeal confirmed that children may be granted indefinite leave to enter or indefinite leave to remain for children, even if the parent does not yet have settled status, where the circumstances justify it.

This widens access to child settlement routes and introduces greater flexibility under Appendix FM.

Understanding the background of the Kone case

The case concerned a child applying to enter the UK to join a parent who had limited leave to remain in the UK under Appendix FM immigration rules. The Home Office refused settlement, arguing that the child should only receive limited leave to reflect the parent’s status.

The family challenged the decision, arguing that the Immigration Rules did not prohibit a grant of indefinite leave to enter the UK and that insufficient weight had been given to child welfare concerns.

The conflict between Part 8 and Appendix FM

A central issue was the relationship between the former Part 8 rules and Appendix FM, which now governs most family applications.

Part 8 is the earlier framework for family migration and includes provisions allowing a child to qualify directly for indefinite leave to enter in their own right. These rules do not require a child’s status to mirror that of a parent and allow settlement where the relevant criteria are met.

Appendix FM, introduced in 2012, now applies to the majority of family applications. It sets out detailed eligibility requirements and generally operates a staged route to settlement, under which children are normally granted leave in line with the parent they are accompanying.

The Home Office argued that Appendix FM imposed a strict requirement that children could only be granted leave of the same duration as their parent. The court rejected this interpretation, confirming that Appendix FM does not remove the discretion preserved under Part 8 to grant indefinite leave to enter where the requirements are satisfied.

How the court applied the hypothetical test

The Court of Appeal applied the “hypothetical test”, asking whether the child would qualify for settlement if already present in the UK.

If the answer is yes, and there are no countervailing public interest factors, it may be unlawful to refuse indefinite leave to enter the UK simply because the parent only has limited leave to remain.

This approach ensures that technical immigration status does not override substantive rights, particularly where child welfare concerns are engaged.

Prioritising child welfare over immigration status

One of the most significant aspects of the judgment is its clear reaffirmation that the welfare of the child is paramount.

The court criticised the Home Office for focusing too heavily on immigration control while failing to properly assess the best interests of the child. This includes emotional stability, family unity, and long-term security.

Where delaying settlement would cause uncertainty or harm, the grant of indefinite leave to remain for children may be required to comply with domestic and international obligations relating to child welfare.

Why immediate settlement matters for families

Granting a child only limited leave to remain in the UK can create repeated cycles of applications, fees, and uncertainty. For many families, this instability directly impacts education, healthcare access, and emotional wellbeing.

Immediate settlement through indefinite leave to enter or indefinite leave to enter the UK offers security and continuity. The Kone decision recognises that, in many cases, it is neither proportionate nor necessary to delay settlement for children who otherwise meet the requirements of Appendix FM.

For parents asking, “Can I apply for settlement status for my child now?”, this judgment provides a strong legal basis to argue for immediate settlement.

Speak to our immigration solicitors about the Kone judgment

The Kone judgment strengthens applications for a child settlement visa under Appendix FM and places greater emphasis on how child welfare concerns are evidenced.

At BHD Solicitors, our immigration team advises families on whether they can apply for settlement status for my child, including cases involving limited leave to remain parents. We provide clear, practical advice tailored to your circumstances.

Call us on 020 8681 5128 or email enquiries@bhdsolicitors.co.uk – rest assured, our solicitors in London and Croydon will ensure your application reflects the law’s clear position: the welfare of the child is paramount.