Home Secretary in Making a Decision – Must Not Cherry Pick the Adverse Factors

JR of a decision of the SSHD to refuse grant the petitioner leave to remain in the UK

[5]  . . . . .Accordingly there was clear authority that when the Secretary of State considered this case the requirement was to  analyse all of it, not just to cherry pick the adverse factors in looking at what the child’s best interests required and ask whether those requirements were outweighed by the legitimate aim of immigration control.

It was wrong to approach the matters as if immigration control was more significant than the interests of the child.

Mr Caskie relied on a decision of the European Court of Human Rights (third section) in GHB v UK [2000] App No 42455/98 involving the relationship between grandparents and grandchildren.

He acknowledged that the court had there accepted that such a relationship generally calls for a lesser degree of protection than that between natural parents and their children.

However, he submitted that where a child lives with a grandparent that would be a significant marker in favour of establishment of the kind of family life that it may be disproportionate to interfere with.


[23] For the reasons given, I will sustain the petitioner’s plea in law and reduce the decision to certify as clearly unfounded the petitioner’s application for leave to remain in the United Kingdom, reserving meantime all questions of expenses.

Outer House of the Court of  Session

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