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Our client is a national of Vietnam. For the majority of his life in Vietnam, he lived with his grandparents and never lived with his parents for any significant period of time. Whilst living with his grandparents, his parents did not maintain any form of contact. For reasons unknown to our client, his parents then arranged, organised and facilitated his departure out of Vietnam. Aged 11 and completely on his own, our client was transported out of Vietnam and into Europe. Around nine months after leaving Vietnam, whilst in France, our client’s younger brother was also sent from Vietnam to join him. Both our client and his younger brother arrived in the UK on 26 November 2018. Our client was aged 12 at this time. Our client is aware that his grandparents and parents did not report him as missing in Vietnam. Since leaving Vietnam, our client has had no contact with his parents or grandparents.

Very quickly after arriving into the UK, both our client and his younger brother were picked up by the police and passed over to the London Borough of Hillingdon, at which point they became Looked After Children under Section 20 of the Children Act 1989, and were subsequently placed into foster the care. At the point of being picked up by the police, both our client and his younger brother were referred into the National Referral Mechanism as potential victims of trafficking. On 3 December 2018, the Single Competent Authority made a positive Reasonable Grounds decision, and on 7 April 2020, the Single Competent Authority made a positive Conclusive Grounds decision.

Soon after their arrival into the UK, both our client and his younger brother claimed asylum. On 20 January 2023, both of their asylum claims were refused, and an appeal was not brought against either refusal. Following this refusal, our client is aware that his parents ceased contact with the Local Authority.

On 23 May 2024, our client’s application to be issued with temporary permission to stay as a victim of trafficking and modern slavery was refused.

On 24 April 2024, a separate solicitors firm, acting upon the instructions of the London Borough of Hillingdon, submitted an application on our client’s behalf for indefinite leave to remain outside of the Immigration Rules, in light of his exceptional and compelling circumstances. Unfortunately, neither the Solicitors nor the Local Authority made this application abundantly clear to our client or his foster carer. This application was made with reference to the Home Office’s Guidance, Annex FM 3.2: children guidance, regarding children in the UK in the absence of their parents. Under this Guidance, where there is no prospect of the child leaving the UK and returning to their parents and/or country of origin in the future, the child may be granted leave to remain for four years. After four years, if there continues to be no prospect of removal, indefinite leave to remain may be granted.

On 5 November 2024, the Home Office made the decision to grant our client a period of limited leave to remain for one year outside the immigration rules. This decision was made on the basis that the Home Office considered that there was a realistic prospect of our client returning to his parents and/or country of origin.

The application for permission to apply for Judicial Review

Our client was not informed of the decision to grant him only one year of limited leave to remain until 3 February 2025. On 3 February 2025, the instructed counsel in this matter, Ms Margo Munro Kerr, submitted an urgent Pre-Action Protocol Letter on our client’s behalf to the Home Office, to challenge this decision. Ms Kerr requested that the decision be withdrawn, and that the Home Office grant our client four years of leave to remain instead. Ms Kerr requested a response by 1pm on 4 February 2025. Ms Kerr approached Duncan Lewis with a view to us being instructed in judicial review proceedings, which would need to be issued urgently due to the expiry of the three month limitation period.

Following the absence of any response from the Home Office, we lodged an application for permission to apply for Judicial Review with the Upper Tribunal on 5 February 2025.

The application for permission to apply for Judicial Review was made on the basis of the following grounds:

1. The Home Office’s assessment that there was a realistic prospect of our client being returned to his parents and/or country of origin in the future was irrational, failed to take into account relevant factors, and took into account irrelevant factors; and
2. The Home Office’s decision was a disproportionate interference with our client’s rights under Article 8 of the European Convention on Human Rights, and the decision failed to take into account our clients bests interests as a child, since he was under the age of 18 at the time the application was submitted.

Order of the Upper Tribunal

On 16 April 2025, Judge Norton-Taylor granted us permission on both grounds of challenge. Regarding ground 1, Judge Norton-Taylor stated that all of the relevant factors as listed in our SFG were considerations which arguably, should have been taken into account by the Home Office, whilst all of the irrelevant factors listed in our SFG were considerations which arguably, should not have been taken into account by the Home Office. Alongside this, Judge Norton-Taylor stated that the Home Office summary of grounds of defence provided “nothing which operates as a ‘knock-out blow’”. Regarding ground 2, Judge Norton-Taylor stated that it is arguable that the decision of the Home Office constitutes a disproportionate interference with private life rights. As with the first ground, Judge Norton-Taylor concluded that the summary grounds of defence did not raise any submissions which rendered this ground unarguable.

This matter highlights the legal acumen of Duncan Lewis’ Public Law department, which works tirelessly on behalf of our clients in judicial review challenges to secure positive outcomes.

Our Instructing Team

Hannah Baynes, a Solicitor and Supervisor in Duncan Lewis' Public Law team, who has extensive experience in judicial review claims involving asylum and human rights. Hannah is assisted by Trainee Solicitor Lily Weatherby and Public Law Caseworker Isabella Healey.

For advice in any public law contact Hannah via email at hannahb@duncanlewis.com or by telephone on 07342 081714.

About Duncan Lewis Solicitors

Duncan Lewis has the UK’s leading public law and immigration practices, frequently acting in high-profile matters including challenges to the Rwanda policy and detention at Manston House. The firm was named Law Firm of the Year 2024 at the LexisNexis Awards, and is ranked top-tier by The Legal 500, Chambers and Partners, and The Times Best Law Firms.

Our Public Law team continues to lead the way in strategic, cost-effective legal action that holds public bodies to account and protects the rights of the most vulnerable.