Children who reach 18 before a decision or an appeal

A recent judgment from the UK Court of Appeal highlights the difficulties that may arise where applications for entry clearance (a visa) or settlement are made on behalf of children who reach the age of 18 before their applications are decided by an Entry Clearance Officer at a British consular post abroad, or by the Home Office in UK, or before an appeal is heard by an immigration judge.

In entry clearance cases, an application will not be refused solely because the child applying for entry clearance reaches the age of 18 by the time the entry clearance officer makes a decision on the application. This is an exception to the general rule that an application for entry clearance will be decided in the light of the circumstances existing at the time of the decision.

The exception is probably designed to prevent unfairness where, for example, there is a delay between an application and an interview or decision by the Entry Clearance Officer and the applicant reaches 18 during that time. However that does not prevent the application being refused: it simply means that it does not fall to be automatically refused because the applicant is no longer a child.

There is no equivalent exception in non-entry clearances cases, so an application which is made from within the UK should be decided on the basis of the facts as they exist at the date of the decision by the Home Office. However, the Immigration and Nationality Directorate’s own internal instructions suggest that they apply a similar approach in determining applications for settlement (Indefinite Leave to Remain, ILR) made by children from within the UK; “applications for leave/further leave to remain made by or on behalf of children should also be decided in the light of the circumstances existing at the time of the decision… If the application was lodged before he reached the age of 18, it should be decided as if he were still under 18.”

The Court of Appeal in SO (Nigeria) [2007] EWCA Civ 76 doubted that there was any basis in the rules or statue for that approach. In any event, and as with entry clearance cases, an application would be likely to be refused where the applicant was living independently or married.

Where an application for entry clearance or settlement is refused and a person appeals to an immigration judge there are important differences in way that refusals of applications for entry clearance and refusals made from within the UK are treated. The law, as the Court of Appeal re-iterated in SO, is absolutely clear in this regard. In an entry clearance appeal, the focus will be on the facts at the date of the Entry Clearance Officer’s decision. Where the appeal is against a refusal of Indefinite Leave to Remain when the application was made from within the UK, the immigration judge is not so restricted and can consider evidence about any relevant matter including facts arising after the Home Office decision. That may make it additionally difficult to succeed in an appeal where the application for settlement was made in the UK and the child is now over 18.