Children with one settled or British parent may benefit from new ruling

19 January 2026

In cases where one parent in the UK has settlement (also known as indefinite leave to remain or ILR) or British citizenship, while the other has limited leave, conventional wisdom has always been that their child should apply for limited leave in line with their non-settled parent. However, a new Court of Appeal case has turned that thinking upside down.

R (Kone) v SSHD [2015]

In a recent Court of Appeal case, the applicant, who was still under the age of 18 at the time, applied to join her parents in the UK, one of whom was British while the other had limited leave. Crucially, she applied for settlement instead of limited leave.

The Home Office refused her settlement application and granted her limited leave instead on the basis that she didn’t qualify for settlement as it read this requirement for being admitted for settlement in the UK under paragraph 297 of Part 8 of the UK’s Immigration Rules as only applying where one parent is in the UK:

“(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”.
 
The applicant challenged the decision by way of Judicial Review, arguing – quite reasonably – that it doesn’t say it only applies where only one parent is present in the UK and that she meets the requirements for settlement.

Both the Upper Tribunal and the Court of Appeal agreed, finding that there is nothing stopping someone with a British or settled (i.e. someone with ILR) parent from applying on this basis, even if their other parent only has limited leave.

Exclusion undesirable

Once the first hurdle of having one parent with settlement or British citizenship is met, the applicant has to show that their exclusion is undesirable. The Court of Appeal held that it’s irrelevant whether someone would be excluded in practice (for example, because they are in the UK with limited leave). The test looks at whether it would be reasonable to exclude the child, regardless of whether this is what would happen in reality.

In cases where a child is living with both of their parents in the UK, one of whom is British or settled, while the other has limited leave, in my view it would be rare for the Home Office to find that the child’s exclusion is desirable, though this is a fact-sensitive question that would require comprehensive, carefully-prepared supporting evidence to this effect. This should also be the case when applying from overseas, though I would expect those applications to be a little trickier, as maintaining the status quo is something the Home Office would look at as part of their assessment.

Who could benefit from this ruling?

The Court of Appeal decision is being appealed by the Home Office in the Supreme Court. Though, in my opinion, the Home Office is unlikely to be given permission to do so given how well-reasoned the decision was. It is also possible for the Home Office to change the rule and it is possible – likely, even – that the rule will change as part of the general overhaul of the immigration system later this year.

This overhaul includes adding layers of complexity to the current simple five-year route to settlement. You can read about proposed changes to settlement here.

In the meantime, there is an opportunity for applying for settlement for children faster than they would normally get it.

This will of course apply to children on a spouse visa, such as in cases where a child isn’t British because they were born outside the UK and their parent in the UK only had ILR, not British citizenship, when they were born.

This isn’t limited to parents in a family route, however. Anyone with one settled/British parent and one parent with limited leave can potentially qualify. This may be of particular interest to children with leave in the Global Talent and Innovator Founder routes, where one parent has already settled after three years while the other parent is on limited leave because they do not qualify until they have completed five years in the UK.

Where a couple in this position in the UK has separated and the child lives primarily with the main applicant, the situation is much simpler, as they can apply under a different provision of the same rule on the basis that the child “normally lives with” the settled parent and not the parent with limited leave. This was always the case, however, and this new case doesn’t change that.

Conclusion

If you think your child may benefit from this provision, we would advise you to get legal advice as soon as possible, as the window for making the application may close when the rules change later this year. This could be as soon as April possibly. These will be complex applications that require very careful preparation so we would advise preparing these with the benefit of legal assistance.

Alex Piletska is a Senior Associate at Vanessa Ganguin Immigration Law. She specialises in a wide range of private immigration, including complex human rights cases, skilled migration and everything in between. She has a particular interest in complex citizenship and nationality cases, vanishingly tricky Adult Dependent Relative applications, Judicial Review and technical procedural issues like validity and variations. Alex often writes and comments on UK immigration issues in the media.