The Supreme Court decided how two tests protecting children apply when a parent may be removed or deported. Whether it is reasonable to expect a child to leave the United Kingdom, and whether deportation would be unduly harsh for a child, are questions about the child in the real world. They do not require the parent’s offence or immigration misconduct to be weighed against the child. All four appeals were dismissed; two cases were sent back to the tribunal.
The dispute
Four appeals raised linked questions about children affected by immigration decisions. Three concerned Part 5A of the Nationality, Immigration and Asylum Act 2002, in force from 28 July 2014. That Part applies when a court or tribunal decides whether a decision under the Immigration Acts breaches the right to respect for private and family life. The fourth raised a related question under the Immigration Rules.
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The appellants said that the decision-maker looks only at the child: whether it is reasonable to expect the child to leave, or whether a parent’s deportation would be unduly harsh. The parent’s immigration history and conduct, and wider reasons for removal, were said to be irrelevant. The Secretary of State said both tests require the impact on the child to be balanced against the public interest in removal or deportation.
Lord Carnwath gave the judgment, with which Lord Kerr, Lord Wilson, Lord Reed and Lord Briggs agreed. Part 5A was intended to narrow the room for judges to introduce public-interest factors not stated in the statute. He also started from the principle that a child must not be blamed for matters for which the child is not responsible, such as a parent’s conduct.
The tests
Section 117B(6) applies to a person who is not liable to deportation. The public interest does not require removal where that person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. A qualifying child is under 18 and is either a British citizen or has lived here continuously for seven years or more.
Section 117C concerns foreign criminals: people who are not British citizens and who have been convicted here of an offence attracting at least 12 months’ imprisonment, or causing serious harm, or who are persistent offenders. Their deportation is in the public interest. If the sentence was under four years, deportation is required unless an exception applies. The relevant exception is a genuine and subsisting relationship with a qualifying partner, or parental relationship with a qualifying child, where the effect of deportation would be unduly harsh. A sentence of four years or more requires deportation unless there are very compelling circumstances over and above the exceptions.
Paragraph 276ADE(1)(iv) of the Rules uses the same seven-year and reasonableness test for a child under 18 seeking leave on private-life grounds.
Reasonableness
Lord Carnwath held that paragraph 276ADE(1)(iv) looks solely at the child. Unlike an earlier policy, it does not require a parent’s criminality or misconduct to be used as a balancing factor, and that requirement cannot be implied. Section 117B(6) was intended to have the same effect. It is free-standing, and the only qualification is that the person relying on it is not liable to deportation.
The parents’ position still matters indirectly. It will normally be reasonable for a child to be with them. If their record means they must leave, that is the real-world background against which reasonableness is judged. Only if, even then, it would not be reasonable for the child to leave does the provision give the parents a right to remain. Lord Carnwath disagreed with any suggestion that reasonableness should be judged otherwise than in the real world in which the children find themselves.
Unduly harsh
Exception 2 under section 117C is also self-contained. The question, seen from the partner’s or child’s point of view, is whether the effect of deportation would be unduly harsh. “Unduly” is not a route back to ranking the seriousness of the particular offence. The distinction already drawn by sentence length is enough.
The words do set a higher hurdle than reasonableness, because they take account of the public interest in deporting foreign criminals. They look for harshness beyond what would necessarily be involved for any child faced with a parent’s deportation. They are not the same as the “very compelling circumstances” test used for sentences of four years or more.
The Court therefore disagreed with the Court of Appeal in MM (Uganda), and with the approach taken by the Upper Tribunal judge in KO, so far as they required the criminal’s immigration and criminal history to be weighed and treated a more serious offence as making the test harder to meet. That would ask whether consequences unduly harsh for one child might be acceptably harsh for another because of the parent’s offence. Lord Carnwath thought that difficult to apply rationally and inconsistent with not holding the child responsible for the parent. Earlier guidance still described the height of the test: unduly harsh is not merely uncomfortable, inconvenient, undesirable or difficult. Harsh means severe or bleak, and unduly raises that standard further.
KO
KO challenged a decision to deport him. He relied on the effect separation would have on his British children.
The Upper Tribunal held that parental criminality had to be considered, but found that it would not be unduly harsh for the children to remain with their mother. Lord Carnwath found that factual reasoning difficult to fault. The judge accepted a close relationship and a complete break if KO were removed, and possible economic disadvantage, but not consequences that were severe, bleak or excessively harsh. Distress of that kind was what deportation ordinarily causes, and nothing out of the ordinary was identified. In that passage the judge did not rely on the seriousness of the particular offences. His alternative view, that looking only at the children could produce only one answer, set the test too low. KO’s appeal was dismissed.
IT
IT sought revocation of an existing deportation order. His application turned on the impact of continued separation on his child and the accuracy of the tribunal’s assessment.
The Court of Appeal, following MM (Uganda), required the public interest and the nature of the offending to be weighed and effectively required very compelling reasons. The Supreme Court rejected that reasoning: the tribunal could not be criticised for omitting a test which the provision did not contain. The appeal was still dismissed. The First-tier Tribunal had been wrong to treat citizenship as preventing relocation; an earlier concession to that effect was erroneous. It had also treated the unevidenced phobia as material. The order sending the case back to the Upper Tribunal was confirmed.
NS and AR
NS and AR sought to remain with their families. The tribunal had found that neither parent had a right to remain and considered where the children could reasonably be expected to live.
Lord Carnwath accepted that the judge’s strong criticism of the parents could arguably be read as feeding into the children’s test. Read as a whole, it did not. Their conduct mattered because it meant they had to leave. The natural expectation was that the children would go with them, and nothing in the evidence suggested that this would be other than reasonable. The appeal was dismissed.
Pereira
The fourth appeal concerned a child who had lived continuously in the UK for seven years and sought leave to remain under the Immigration Rules.
He argued that the correct reading of the rule meant his appeal should already have succeeded. The Secretary of State noted that he was now 19 and had spent more than half his life continuously here, so was in principle qualified under a different part of the same paragraph. Lord Carnwath said the tribunal’s task was not limited by the order. Unless resolved by agreement, the case had to be decided under the law stated in this judgment, including the correct approach to the seven-year rule. The appeal was dismissed and the remittal confirmed.
Verdict: The Court unanimously dismissed all four appeals. The decisions in KO and in NS and AR stood. IT’s case and the fourth appeal remained remitted for fresh determinations under the correct approach.
Source: KO v Secretary of State for the Home Department [2018] UKSC 53
