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Greg Davies, barrister at 4PB (who represented the children in Re Z), looks at the implications of the decision in W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam) as to important questions of law and procedure concerning children’s immigration status under the UK’s European Union Settlement Scheme (EUSS). Specifically, in W and Re Z , the court provided clear and comprehensive guidance for all local authorities in respect of looked after children, care leavers and children in need. 

Background

Two cases (W and Re Z) came before the court sequentially to consider applications under the inherent jurisdiction for the issuing of Polish passports and settled status for the subject children. In the first case, the mother’s consent to the applications was predicated on the children being returned to her care. The father opposed. In the second case, neither parent engaged save to state their unreasoned opposition to the applications.

Issues

The court addressed the following urgent questions:

• where the parent or parents of an EU national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for immigration status under the EUSS or (b) cannot be located in order to ascertain whether they agree, does the local authority need the authorisation of the court to proceed with an application for immigration status under the EUSS with respect to the child, or may it proceed pursuant to the power conferred upon it by section 33(3) of the Children Act 1989 (ChA 1989)
• where the parent or parents of an EU national child who has been made the subject of a care order under ChA 1989, Pt IV (a) oppose an application being made on behalf of the child for passports or national identity documents to support an application for immigration status under the EUSS or (b) cannot be located in order to ascertain whether they agree, does the local authority need the authorisation of the court to proceed with an application for a passport or national identity card with respect to the child, or may it proceed pursuant to the power conferred upon it by ChA 1989, s 33
• where an EU national child who has been made the subject of a care order under ChA 1989, Pt IV requires a passport or national identity card to be issued by the EU Member State of the child's nationality in order to progress an application under the EUSS and (a) the parent or parents of the child oppose a passport or national identity card being issued or cannot be located in order to ascertain whether they agree and (b) in such circumstances the EU Member State requires a court order before it will issue a passport or national identity card, does the court have the power make such an order and, if so, what order

Relevant law

In relation to parental responsibility and consent, the court undertook a review of the relevant law and guidance, in particular:

• the EUSS
• ChA 1989, s 33(3)
• section 25 of the Adoption and Children Act 2002 (ACA 2002), and
• the inherent jurisdiction

The court carefully considered the line of Court of Appeal authority concerning the proper exercise of parental responsibility by a local authority.  The court was satisfied that, ordinarily, it will not be the case that the consequences of a local authority overriding the wishes or views of a parent to acquire passports or settled status for children are so profound or enduring that it would be wrong to exercise the statutory power conferred by ChA 1989, s 33(3) or ACA 2002, s 25. 

The court acknowledged there may be some limited cases that require an application under the inherent jurisdiction but this should not be the first port of call in such situations.

In their submissions in the Re Z case, counsel for the children (myself, led by Henry Setright QC) suggested that there could be a cohort of children who may meet the threshold for proceedings under ChA 1989, Pt IV.  While not speculating in that regard, the court noted that the submissions served to highlight the need for local authorities to remain alive, when discharging their obligations to looked after children for whom they do not share parental responsibility, care leavers and children in need, to the possibility of cases that may, exceptionally require the intervention of the court.

The court’s guidance

MacDonald J summarised the court’s guidance (at para [79]) as follows:

• the deadline for applications to the EUSS is 30 June 2021 and the necessary application must be made in a timely manner so as to ensure the relevant deadline is met and to minimise uncertainty for the subject child—it is not acceptable to leave children in a position of ‘limbo’ with respect to their immigration position
• reliance should not be placed on the discretion afforded to the Secretary of State for the Home Department to admit late applications after the expiration of the deadline on 30 June 2021 as a reason for failing to act in a timely manner—a late application will result in the child becoming undocumented for a period, with the concomitant impact on access to services and benefits and liability to immigration enforcement and even a short period undocumented can have an adverse impact on a child or young person
• issues of immigration status with respect to looked after children must in each case be addressed early as part of any assessment and care plan, including establishing the child’s current immigration status and, where necessary, seeking legal advice about appropriate action concerning immigration status having regard to the care plan in respect of the child 
• the obligation on local authorities to identify children who are eligible to make an application under the EUSS and provide support to those children is a mandatory one
• the obligation on local authorities to identify children who are eligible to make an application under the EUSS and provide support to those children extends beyond those children who are looked after by reason of being the subject of a care order to children who are looked after by reason of being accommodated by a local authority pursuant to ChA 1989, s 20, to children who are the subject of placement orders, care leaves under ChA 1989, ss 23A to 24D and the Care Leavers (England) Regulations 2010 or Care Leavers (Wales) Regulations 2015 and to any other children in receipt of local authority support, including children in need and children who are lost or abandoned
• with respect to children who are looked after by reason of being accommodated by a local authority pursuant to ChA 1989, s 20, care leavers under ChA 1989, ss 23A to 24D and the Care Leavers (England) Regulations 2010 or Care Leavers (Wales) Regulations 2015 and any other children in receipt of local authority support, including children in need, the local authority must follow the guidance issued by the Home Office and in particular remain cognisant of the obligation upon it to ensure that those with parental responsibility for the children are aware of the need to make an application to the Scheme, signpost them to the Scheme, explain its importance, offer practical support and monitor closely the progress of any application
• with respect to children who are lost or abandoned for whom there is no one with parental responsibility, the local authority must discharge fully its duties under ChA 1989, s 22(3) in assisting eligible children who are lost or abandoned to secure immigration status under the EUSS
• in respect of each child looked after by reason of being the subject of a care order or who is the subject of a placement order who is also an EU, EEA or Swiss national, a local authority is required to consider whether or not to apply immigration status under the EUSS on behalf of that child or to assist the child to do so and, if necessary, to seek the documentation necessary to make such an application, namely a passport from the child’s country of nationality or other acceptable form of national identification—in making applications under the EUSS, the local authority should apply the guidance issued by the Home Office
• the question of whether an application should be made for immigration status under the EUSS for a looked after child who is the subject of a care order is a matter that is properly within the remit of the independent reviewing officer (IRO) having regard to the functions of an IRO as set out in ChA 1989, s 25B and Part 8 of the Care Planning, Placement and Case Review (England) Regulations 2010 which includes monitoring the performance by the local authority of its obligations with respect to a looked after child
• ordinarily, in respect of a child for whom it holds parental responsibility under a care order or a placement order, the local authority will be able to proceed to make the application under the EUSS pursuant to the power conferred upon it by ChA 1989, s 33(3) or ACA 2002, s 25—it is ordinarily neither necessary nor appropriate for a local authority to refer the matter to the High Court where a parent opposes the grant of settled status to a child for whom the local authority holds parental responsibility 
• ordinarily, in respect of a child for whom it holds parental responsibility under a care order or placement order, the local authority will likewise be able to proceed to make an application to renew a child’s passport or national identity card pursuant to the powers conferred on it by ChA 1989, s 33(3) or ACA 2002, s 25, subject to being able to fulfil the legal requirements for such an application laid down by the State authority responsible for issuing the passport—it is ordinarily neither necessary nor appropriate for a local authority to refer the matter to the High Court where a parent opposes the issue of a passport or national identity card to a child for whom the local authority holds parental responsibility 
• the process under ChA 1989, s 33(3) or ACA 2002, s 25 is not however, merely an administrative one and in exercising its statutory power in each case, the local authority must satisfy itself that, where the child is looked after by reason of being the subject of a care order, an application for immigration status under the EUSS and, where necessary, an application for a passport or national identity card will safeguard and promote the welfare of the subject child pursuant to ChA 1989, s 33(4) and, where the child is the subject of a placement order, that an application for immigration status under the EUSS and, where necessary, an application for a passport or national identity card, is in the best interests of the child pursuant to ACA 2002, s 1(2)
• the child’s wishes and feelings should always be considered and where of sufficient age and understanding, children should be made aware their entitlement to independent advocacy support and the local authority should facilitate this access where required
• while parents’ views should be obtained and appropriately considered with respect to both applications for immigration status under the EUSS and for the provision or renewal of passports or other national identity documents, those views should not be viewed as determinative unless they have a real bearing on the child’s welfare
• in cases where parental opposition or absence mean that the procedural requirements of the State authority responsible for issuing the passport or national identity card include a requirement that the application be supported by a court order then, before issuing an application for such an order, the local authority must first seek to confirm with the Home Office Settlement Resolution Centre whether the any documents that the child already has available are sufficient for the purposes of the EUSS application—only if they are not, and no other acceptable documents exist, should an application to court under the inherent jurisdiction be contemplated by the local authority 
• there may be a very small number of cases in which proceeding under ChA 1989, s 33 or ACA 2002, s 25 with respect to an application for immigration status under the EUSS will not be appropriate—in this context, while the vast majority of cases will be suitable to be dealt with under the power conferred by ChA 1989, s 33 or ACA 2002, s 25, local authorities must remain alive to the possibility of cases that do, exceptionally, require the intervention of the court
• where a parent opposes the course chosen by the local authority pursuant to the power conferred upon it by ChA 1989, s 33, and while recognising the inherent difficulties for often unrepresented parents for whom English is a second language, it remains open to the parents to make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 of the Human Rights Act 1998 to prevent the applications being made or determined before the matter comes before a court for adjudication