In these proceedings the court was required to determine whether local authorities needed its authorisation to apply for immigration status or passports for children subject to a care order. The issue was whether the local authorities should exercise parental responsibility to make applications under the European Union Settlement Scheme (EUSS). Mr Justice MacDonald held that a local authority is generally entitled to apply for settled status under the EUSS on behalf of a child subject to a care order or placement order pursuant to the parental responsibility conferred on it by section 33(3) of the Children Act 1989 and section 25 (parental responsibility) of the Adoption and Children Act 2002. The local authority did not need to seek the court’s authorisation before making such an application, even where the child’s parents objected or could not be located in order to give consent. The issue arose in the context of the EUSS and its application to four children in the UK. In order for EU nationals to remain in the UK after Brexit, they must apply for settled status under the EUSS before 30 June 2021. Survey results indicated that the total number of looked after children and care leavers eligible to apply under the EUSS was 3300, of which 2080 were the subject of an interim care order, a care order or a placement order. Further, the survey indicated that of those 3300 eligible children and young people, 1520 applications were received.
Of the 2080 eligible children and young people in respect of whom there was in force an interim care order, a care order or a placement order, 890 had had an application to the EUSS made on their behalf by a local authority. The four children in these proceedings, were all born to Polish parents. The first two children were subject to final care orders, and a placement order was made in respect of one child. Their passports had been lost. The second two children were to be placed with their maternal great cousin under a special guardianship order and the Polish passport office required the written consent of all those with parental responsibility, or a court order replacing such consent, before a passport could be issued for the children. In both cases, the parents refused consent. The court was told that the Home Office is now repeating the survey in order to ascertain what further progress has been made in respect of applications to the EUSS for looked after children and other children with whom local authorities are concerned who are eligible to apply under the EUSS. In the first matter, MacDonald J was concerned with the welfare of PW, born in 2009 and aged 11 and NW, born in 2011 and aged 9. Warwickshire County Council applied for orders under the inherent jurisdiction consenting to the issue by the Polish Embassy of new passports for PW and NW, permitting the local authority to apply for EU settled status under the EUSS for each of the children. In the second case, the court was concerned with the welfare of DZ, born in 2007 and now aged 13 and MZ, born in 2008 and now aged 12.
Northamptonshire County Council applied for orders under the inherent jurisdiction of the court consenting to the issue by the Polish Embassy of new passports for DZ and MZ and permitting the local authority to apply for immigration status under the EUSS for each of the children. Neither parent appeared before the court and neither parent had engaged in the proceedings.
The EU Settlement Scheme
Under the Immigration Act 1971, except those with a right of abode, Irish citizens and those persons who are exempt from immigration control, every person requires leave to enter or to remain in the UK.
Before 11.00 pm GMT on 31 December 2020, EU, other European Economic Area (EEA) citizens and Swiss citizens and their family members did not require leave to enter or remain in the UK as they had rights of entry in accordance with the EU Treaties and the Free Movement Directive, Directive (2004/38/EC), as given effect in UK law by the the Immigration (European Economic Area) Regulations 2016. However, after 31 December 2020, the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 repealed the 2016 Regulations, bringing to an end freedom of movement between the UK and the EU.
Consequently, after the UK’s departure from the European Union, citizens of the EU, EEA and Swiss citizens and their family members no longer possessed the EU right of freedom of movement to remain in the UK. Part 2 of the Withdrawal Agreement between the UK and the EU, given effect in domestic law by the European Union (Withdrawal Agreement) Act 2020, sets out the provisions of the Treaty concerning citizens’ rights.
Those provisions, and the provisions in agreements with the EEA and with Switzerland, govern the rights of EU, other EEA citizens and Swiss citizens who were residing in the UK prior to 11.00pm GMT on 31 December 2020.
Under these arrangements, EU, other EEA citizens and Swiss citizens who were resident in the UK prior to 11pm GMT on 31 December 2021 can continue to exercise their right to reside in accordance with the Free Movement Directive, provided that they continue to satisfy the conditions specified in the Directive. However, pursuant to article 18 of the Withdrawal Agreement, the UK has decided to require EU, other EEA citizens and Swiss citizens who wish to continue to take advantage of their rights under the Withdrawal Agreement after the end of a grace period terminating on 30 June 2021 to apply for a new immigration status in the UK.
The EUSS was set up by the UK and under it EU, other EEA citizens and Swiss citizens can seek immigration clearance to enter or remain in the UK. In accordance with the Citizen’s Rights (Application Deadline and Temporary Protection)(EU Exit) Regulations 2020, the residence rights of EU, other EEA citizens and Swiss citizens who were resident in the UK in accordance with EU law prior to 31 December 2020 are “saved” until those persons are granted leave under the EUSS – or until 30 June 2021 unless they have an outstanding application under the EUSS, in which case their rights remain “saved” until the application is determined and/or any rights of appeal have been exhausted.
The EUSS is constitutive conferring the power to grant settled status. It is not declaratory in nature. In the circumstances, those seeking immigration status under the EUSS must make an application. The application must be made using the applications process and in order to make a valid application the applicant must supply the required proof of identity and nationality. The EUSS is free, there is no application fee. The position of the Home Secretary and the Education Secretary is that parental consent is not required for a valid application by a child under the EUSS, since the rights from which eligible children benefit under the Withdrawal Agreement are not dependent on parental agreement.
The EUSS is only about immigration status. A person who has had settled status under the EUSS for a period of 12 months may thereafter apply for British Citizenship, settled status does not in itself affect the citizenship of the EU, EEA or Swiss citizen in question for the purposes of UK law. The government argued that making an application under the EUSS will not prevent the child from applying for leave later under another immigration route should he or she wish to. In the cases before the court, the Polish Embassy had confirmed that the granting of EUSS settled status to the children will not affect the children’s status as Polish citizens nor their rights there under the law of Poland.
The relevant guidance to caseworkers entitled EU Settlement Scheme: EU, other EEA and Swiss Citizens and their family members states, that a late application may be made where there are reasonable grounds for the failure to meet the deadline and the grounds include “children whose parent, guardian or local authority fails to apply on their behalf.” The UK government postulates a situation in which an eight year old looked after child discovers, on reaching the age of majority, that a local authority has failed to make an application under the EUSS as being an example of a situation that could constitute reasonable grounds for a late application. But a person who has missed the application deadline of 30 June 2021 will at that point become undocumented which will resultantly impact access to services and benefits and liability to removal.
The Home Office has issued guidance to local authorities highlighting the need to secure settled status for looked after children for whom they are responsible who are EU, other EEA or Swiss citizens. Local authority guidance sets out the role that local authorities and health and social care trusts have in ensuring that looked after children and care leavers in applying or assisting the child to apply under the EUSS. The Education Secretary made clear that he was of the view that the steps required of a local authority to make or assist in making EUSS applications on behalf of a looked after child safeguard and promote the welfare of that child and, accordingly, fall within the ambit of section 33(3) of the 1989 Act, or section 25 of the 2002 Act where the child is the subject of a placement order.
Mr Justice MacDonald
The court’s point of departure was Holman J’s observation in SM, TM and JD v SSHD  EWHC 1144 (Admin) that it is unacceptable to leave children in a position of “limbo” with respect to their immigration position as they develop and acquire a growing awareness of their circumstances. Rather, the necessary application must be dealt with in a timely manner that ensures the relevant deadline is met and minimises uncertainty for the subject child. Moreover, the EU Settlement Scheme: Looked after children and care leaves: local authority and health a social care trust guidance specifies that the local or health and social care trust must:
in all circumstances, seek to secure the best possible outcomes for the looked after child, safeguarding and promoting their best interests and acting as a good corporate parent to enable each looked after child to achieve their full potential in life.
Addressing immigration issues early as part of any assessment and care plan, offering support and if necessary, seeking legal advice about the appropriate action based on the circumstances of the individual looked after child is a core part of these responsibilities.
On the issue of whether the court’s authorisation was required, MacDonald J stated that there were some decisions with respect to a child’s welfare which were of such import or gravity that it would not be appropriate for the local authority to take a decision pursuant to the power conferred on it by section 33(3)(b). In such cases, the decision in issue could be referred to the court for determination under its inherent jurisdiction. These authorities were Re C (Children)  EWCA Civ 374, Re H (A Child)(Parental Responsibility: Vaccination)  EWCA Civ 664 and Re Y (Children in Care: Change of Nationality)  EWCA Civ 1038. Notably, section 100 of the Children Act 1989 is the starting point in cases concerning the exercise by the High Court of the inherent jurisdiction with respect to children.
MacDonald J held that where the parent or parents of an EU, EEA or Swiss 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, in making the EUSS application on the child’s behalf, the local authority will ordinarily be entitled to proceed under the power conferred upon it by section 33(3) of the Children Act 1989 and will not first require the approval of the court. He also held held that the parent or parents of an EU, EEA or Swiss 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 passports or national identity documents to support an application for EU settled status, or (b) cannot be located in order to ascertain whether they agree, in making the application for the passport or identity document the local authority will ordinarily be entitled to proceed under the power conferred upon it by section 33 of the Children Act 1989 and will not first require the approval of the court. MacDonald J reasoned that:
62. With respect to the instances of the exercise of parental responsibility that are in issue before this court, the starting point must be section 33(3) of the Children Act 1989 in circumstances where there are care orders in force and, in relation to NW, section 25 of the Adoption and Children Act 2002 where a placement order is in force. By these statutory provisions Parliament intended a local authority which has been granted parental responsibility in respect of a child by operation of law to be able, following a rigorous procedural and legal process undertaken before a court prior to the granting of such orders and if necessary to safeguard and promote the child’s welfare, to limit the power of a parent to make major decisions regarding a child’s life and instead to take those decisions in place of the parent by exercising its parental responsibility for the child.
MacDonald J added that:
68. In all the circumstances, I am satisfied that, in making the application to the EUSS on behalf of the child the local authority will ordinarily be entitled to proceed under the power conferred upon it by section 33(3) of the Children Act 1989, or section 25 of the Adoption and Children Act 2002 where a placement order is in force, and will not require the approval of the court. I am likewise satisfied that, where it is necessary to make an application for a passport or identity document to support an application under the EUSS, the local authority will again ordinarily be entitled to proceed under the power conferred upon it by section 33 of the Children Act 1989 or section 25 of the Adoption and Children Act 2002 and will notrequire the approval of the court. Within this context, it is interesting to note that the Home Office Guidance entitled Notes for Local Authorities Children’s Services Departments When Applying for Passports on Behalf of Children May 2020 contemplates this being the position.
69. The position I have described above is likely to be the position in the vast majority of cases concerning EU, EEA or Swiss children eligible under the EUSS. Further, as I have stated above, it would not be proportionate or, arguably, consistent with the UK’s obligations under Article 18(1)(e) of the Withdrawal Agreement to require confirmation to be obtained by a local authority in each case as to all potential legal consequences for each child over the course of their lifetime by reference to the domestic law in each of the remaining EU Member States prior to an application under the EUSS being made. However, I wish to make abundantly clear that this does not remove the duty on the local authority in each case where an order is in force to satisfy itself that an application for immigration status under the EUSS will safeguard and promote the welfare of the subject child for the purposes of section 33(4) of the 1989 Act or, where a placement order is in force, that such an application is in the child’s best interests for the purposes of section 1(2) of the 2002 Act.
The court provided the following reasons as to why its authorisation was not required for an application under the EUSS.
Except for limitations concerning change of the child’s name or removal of the child from the jurisdiction, the power conferred by section 33(3) was not otherwise circumscribed – further, there was no provision in section 33 for a parent to dispute the local authority’s decision.
Although there were a small category of cases in which it remained appropriate for issues regarding the exercise of parental responsibility by a local authority to be placed before the court, that procedure was only justified where the consequences of a particular act were so profound or enduring, and had such an impact on the child or on the article 8 of the ECHR rights of others sharing parental responsibility with the local authority, that it would be wrong for a local authority to use its power under section 33(3)(b) to override the wishes of the parent.
Applications under the EUSS or for a passport of identity card did no more than confirm the status quo. Passports and identity cards evidenced the child’s nationality but did not change their legal status. Applications under the EUSS concerned the child’s immigration status in the UK and did not change their nationality or citizenship. It would not stop the child returning to their country of origin or relinquishing their UK immigration status on reaching majority. If applications under the EUSS were not made in relation to children subject to a care order, they would become undocumented and they would be at risk of immigration control with the attendant disruption to the child’s placement, education, peer group and emotional welfare.
Where the parents objected or could not be located, a local authority would ordinarily be entitled to proceed to make an application under the EUSS on behalf of a child subject to a care order/placement order under the power conferred on it by section 33(3) of the 1989 Act or section 25 of the 2002 Act. Similarly, the local authority could exercise its parental responsibility to apply on behalf of the child for passports or national identity documents to support applications under the EUSS. But the local authority was required in each case to satisfy itself that an application under EUSS would safeguard and promote the welfare of the child and in exceptional cases the court’s intervention might be required.
Where the procedural requirements of the state issuing the passports were such that a court order was required to dispense with the parents’ consent, the court had jurisdiction to make such an order under its inherent jurisdiction in an appropriate case, including in the present cases.
The consequences of not securing a child’s immigration status in the jurisdiction which they were settled could satisfy the demands of section 100(4)(b) of the 1989 Act. But it was right that local authorities should first confirm whether the documents that the child in question already had available were sufficient for the purposes of the EUSS application and only if they were not should an application to the court be contemplated.
The following additional guidance was given by the court. First, the immigration status of looked after children should be addressed as part of the overall care plan. Secondly, local authorities were required to identify children eligible to apply under the EUSS and make applications in a timely manner. Thirdly, the court said that the duty extended to children looked after by reason of being accommodated by the local authority under section 20, care leavers, children in receipt of local authority support, and children who were lost or abandoned. Fourthly, the child’s wishes and feelings should be considered. Fifthly, while the parents’ views must be obtained and considered, they were not determinative unless they had a real bearing on the child’s welfare. Finally, and importantly, it was open to a parent to invoke the inherent jurisdiction of the court and apply for an injunction to stop EUSS applications being made before a court adjudicated on the issue.
The Children’s Society has issued a warning that thousands of children of EU citizens who have been taken into care may become “undocumented” adults without the right to work, rent a home or receive benefits. The Children’s Society has found that only 39% of children in care, or young adults who recently left care, have had applications to remain in the UK after Brexit made on their behalf. The charity further said it was “doubtful” that all eligible children and care leavers had been identified. Freedom of information requests showed that 1426 applications had been made by councils responsible for 3690 children. More than 1000 of these had been processed by the end of March 2021 and 838 children got settled status and 189 got pre-settled status.
With less that three months remaining before the deadline expires for the right to apply for settled status on 30 June 2021, the charity is afraid that many vulnerable young people may find themselves living in the UK unlawfully without any knowledge of their unlawful status. Nonetheless, while prompt action is the need of the day, it is still possible to make a late application on the basis of “reasonable grounds” if an application to the EUSS was not made on their behalf in a timely manner when they were a child by a parent, guardian or Local Authority. Importantly, the Migration Observatory has tellingly described “settled status” as “unsettled status”. Earlier research conducted by the Coram Children’s Legal Centre in 2019 found that these vulnerable children risked becoming a new “Windrush generation”. Controversially, former Home Secretary Amber Rudd who had to resign over her mishandling of the Windrush scandal and misleading Parliament about removal targets, boasted that getting EUSS registration was “as easy as shopping at LK Bennett”. The government keeps apologising for victimising the Windrush generation, but as Sonia Sodha says “it is planting the seeds for a future injustice no less profound that will affect some of the most vulnerable children in society.”