High Court upholds refusal of child citizenship discretion in AB and Anor v Home Secretary

The High Court has dismissed a judicial review challenge brought on behalf of two stateless children against the Home Secretary's refusal to exercise discretionary powers to grant them British citizenship, in a judgement that applies the Supreme Court's recent guidance on the duty to safeguard children's welfare in immigration decisions.

In AB & Anor, R (on the application of) v Secretary of State for the Home Department [2026] EWHC 1890 (Admin), Deputy High Court Judge Aidan Eardley KC considered claims brought by two siblings, aged 12 and 11 at the time of their applications, who were born in Kenya and rendered stateless under Kenyan law despite their father's British citizenship. Their applications for registration under section 3(1) of the British Nationality Act 1981 were refused in March 2025, the decision-maker concluding that neither child's future could be seen to lie in the UK given they had never lived there, held no leave to remain, and had a mother who was not settled in the country.

The claimants argued that the refusal breached the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard children's welfare, contending that the decision-maker should have made further enquiries into their circumstances, including interviewing the elder child, and had failed properly to identify or balance their best interests. They also sought to raise arguments concerning a failure to take into account the elder child's scholarship to an English boarding school, insufficiency of reasons, and breaches of human rights protections, though the judge declined to entertain the human rights arguments as inadequately pleaded.

Applying the Supreme Court's recent decision in CAO v Secretary of State for the Home Department, the judge held that compliance with the section 55 duty is a matter of substance rather than form, and that a decision letter need not expressly reference the underlying statutory guidance provided it demonstrates that a child's best interests have genuinely been weighed as a primary consideration. He found no obligation on the decision-maker to have sought further information in this case, since the applications had been prepared by lawyers instructed by the children's own parents and there were no features suggesting the children's interests diverged from what had been presented on their behalf. He rejected the suggestion that structuring the decision by first considering the "normal" registration criteria before turning to best interests was itself unlawful, noting this approach was consistent with the Supreme Court's reasoning in Zoumbas v Secretary of State for the Home Department.

On the scholarship point, the judge accepted that the decision letter's general assurance that all submitted evidence had been considered was sufficient, without requiring express reference to every document. He also rejected the wider irrationality challenge, finding that on the limited information available to the decision-maker at the time, including no assertion that either child intended to settle permanently in the UK, it remained open to a rational decision-maker to prioritise the usual expectation that applicants first obtain leave to remain and settlement before citizenship.

The judge noted, without it affecting the outcome, that later witness evidence filed in the proceedings painted a considerably fuller and more compelling picture of the practical difficulties the children faced as a result of their statelessness than had been presented to the original decision-maker, and observed that a further application under section 3(1) remained open to the claimants while they were still minors.