Case Preview: KO (Nigeria) v Secretary of State for the Home Department, & Other cases by Asad Khan

Reasonableness and the Seven Year Rule

Seven years’ residence is seen as a magical milestone in immigration law. The revised Immigration Rules introduced in 2012 and subsequent statutory innovations in the Immigration Act 2014 revived a redundant non-statutory concessionary policy that the seven years’ benchmark should suffice for grant of leave to parents in cases involving children unless there were exceptional circumstances requiring removal such as serious criminal offending or evasions of immigration control. The policy, called DP5/96, was withdrawn in 2008 to deter overstaying and to prevent those in breach of immigration law from enjoying a more advantageous position than those who comply with it. In the case of Pereira, the Supreme Court considered the important issue of the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under para 276ADE(1)(iv) of the rules. Pereira’s case was heard together with NS (Sri Lanka) and Ors which involves the question whether the conduct of the parent(s) can be taken into account when considering whether it would be reasonable for a child to leave the UK under the Nationality, Immigration and Asylum Act 2002, s 117B(6) (as amended). Other connected test cases include KO (Nigeria) and IT (Jamaica) which focus on the “unduly harsh” provisions of s 117C(5) of the 2002 Act, para 399 of the rules and applications for post-deportation revocation.

KO also involves the theme of parental misconduct and IT turns on the weight to be given to the public interest when considering whether a refusal to revoke a deportation order against a foreign criminal would be “unduly harsh” on his British citizen child. This is the first opportunity for the apex court to evaluate the statutory machinery laid down in ss 117A to 117D of Part 5A of the 2002 Act which courts and tribunals must apply when assessing cases involving ECHR, art 8. At the heart of the statutory provisions is the concept of a “qualifying child”, i.e. a person defined in s 117D who is under the age of 18 and who is either a British citizen or has lived in the UK for a continuous period of seven years or more. In hearing these appeals, Lords Kerr, Wilson, Reed, Carnwath and Briggs also had the opportunity to hear argument on whether undeserving parents should be allowed to profit from the residence of their innocent children by “piggybacking” off their rights and best interests. Pereira is Sri Lankan and entered the UK in 2006 as a child aged seven as his father’s dependant. He then applied for ILR in 2013 but the application was refused. The decision-maker thought that it was reasonable for him and his parents to return to Sri Lanka because the family did not have leave to remain.

The FTT allowed Pereira’s appeal but entirely failed to consider the question whether it was unreasonable for him to leave the UK. The UT overturned the FTT’s decision and decided that it would not be unreasonable for Pereira to return to Sri Lanka. Pereira and NS (Sri Lanka) & Ors were part of the litigation in MA (Pakistan) & Ors [2016] EWCA Civ 705 (see here) where the Court of Appeal unanimously held that the UT had failed to properly carry out the proportionality assessment and remitted Pereira’s case to be reheard. However, Pereira contends that his appeal should have been allowed outright.

Overall, albeit with some reluctance, Elias LJ held that in giving consideration to whether it was reasonable to remove a child from the UK under 276ADE(1)(iv) of the rules and s 117B(6) of the 2002 Act, a court or tribunal should not simply focus exclusively on the child but must also have regard to the wider public interest considerations, including the parents’ conduct and immigration history. The key issue concerns the manner in which the court should approach the question of reasonableness. Since the critical question involves whether it would be unreasonable for the child to be expected to leave the UK, Elias LJ said that the court should approach rule 276ADE(1)(iv) and s 117B(6) in the “same way” because they are “similarly framed”. So the question whether it is reasonable to expect the child to leave must be approached in an identical manner in both instances.

Reducing the conundrum to a manageable formula, the Court of Appeal was of the view that courts and tribunals only need to ask the following questions when applying s 117B(6). First, is the applicant liable to deportation? If so, s 117B is inapplicable and instead the relevant code will usually be found in s 117C. Second, does the applicant have a genuine and subsisting parental relationship with the child? Third, is the child a qualifying child as defined in s 117D? And finally, is it unreasonable to expect the child to leave the UK? If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that art 8 is infringed.

The structure of s 117B(6) is straightforward because it unambiguously states that there is no public interest in removal where a 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 UK. Elias LJ held, and King and Richards LJJ concurred, that there is “no doubt” that s 117B(6) is necessarily “a self-contained provision” expressing Parliament’s will that when the statutory conditions are satisfied there is no public interest in removal. The court refused to do violence to clearly drafted statutory language by adding the word “normally” before “no public interest in removal”. Since Parliament has specified that the outcome should be non-removal, no reason existed to distort statute simply to favour the Government. Even so, the reasonableness question is not automatically resolved by the best interests assessment and Elias LJ held that:

47 … If Parliament had wanted the child’s best interests to dictate the outcome of the leave application, it would have said so. The concept of “best interests” is after all a well established one.

The fact of the child’s seven year presence in the UK must be given significant weight in the proportionality exercise because (i) of its relevance to determining the nature and strength of the child’s best interests, and (ii) it establishes as a starting point that leave should be granted unless there are “powerful reasons” to the contrary. Rejecting the submission that the prevailing statutory situation amounted to a re-enactment of the abolished DP5/96 policy, his Lordship construed s 117B(6) to mean that a qualifying child without leave must be granted leave despite producing the outcome that “their possibly undeserving families can remain with them.”

The principle in ZH (Tanzania) [2011] UKSC 4 requires children’s best interests to be treated as a primary consideration where they are affected. This principle is key to applying the reasonableness test. That much is uncontroversial. But substantive differences arise otherwise. Pereira contends that the child’s best interests and the reasonableness or otherwise of expecting the child to leave the UK are but two sides of the same coin with the result that upon establishing that it is in the best interests of the child to remain in the UK, it must be true that it would not be reasonable to require him to leave. Therefore, if the statutory conditions are met nothing else matters and leave must be granted automatically.

On the other hand, the Home Office argues that principle in s 117B(6) is the same as the approach that a court will adopt in any other art 8 exercise and so the parents’ conduct and history do indeed matter. Admittedly, seven years’ residence is a significant factor to be weighed in the balance. But on the whole the usual art 8 proportionality assessment remains unaffected. Therefore, relying on EV (Philippines) [2014] EWCA Civ 874 – where the children did not have seven years’ residence – the Government argues that the parents’ right to remain in the UK must be a core focus in the proportionality assessment. The important question is whether it is reasonable to expect the child to follow the parent with no right to remain to the country of origin. Pereira’s counsel argued in the Supreme Court that children’s conception of the world is critical and they must be the starting point. Observably, the rationale of “following the parent” was not mentioned in EV, a “red herring” which is said to “infect” these cases as it factually fell short of the seven years’ benchmark.

The question of reasonableness, and the factors a court or tribunal is entitled to consider in determining its limits, is critical to the outcome of these cases. The Government is at pains to stress that nothing in the new seven years’ statutory scheme constitutes a departure from the traditional approach to art 8, as historically articulated by the courts. But the idea that nothing has changed was considered to be fanciful by Elias LJ who held that it is not legitimate to have regard to public interest considerations unless s 117B(6) itself permits otherwise either explicitly or implicitly. Indeed, during the hearing of these cases, even Lord Carnwath was incredibly dismissive about the submission that the earlier article 8 status quo remains intact in its original form despite the enactment of express statutory provisions designed to tackle art 8 and the public interest.

Free from the authority of MM (Uganda) & KO (Nigeria) [2016] EWCA Civ 450 (see here and next post), Elias LJ would have provided focus solely to the child despite the advantages conferred upon undeserving parents. His Lordship therefore saw no justification to construe the concept of reasonableness to cover the conduct and immigration history of the parents as part of an overall analysis of the public interest.

The Government’s arguments encountered numerous difficulties. Rejecting the point that s 117B(6) merely operates to give weight to a child’s residence of seven years and except for that the proportionality test must be applied as in any other art 8 case, the court felt that it was tautologous to construe the provision to mean that removal is not in the public interest in circumstances where the application of the proportionality test does not justify such action. In justification of a wider approach, Elias LJ reasoned that:

40 … It will generally be in the child’s best interests to live with his or her parents and siblings as part of a family. That is usually a given especially for younger children, absent domestic abuse or some other reasons for believing the parents to be unsuitable.

By refusing to accept the point that the reasonableness of expecting the child to leave is a function of the degree of the strength of the public interest in removing the parents, the court preferred a child-centred approach providing focus to the child rather than focusing on the position of the family as a whole.

Another issue in Pereira’s case concerns what the court should it do if it does not consider that it has been provided with the necessary information to properly make the assessment on the child’s best interests. McCloskey J held in MK (Sierra Leone) [2015] UKUT 223that despite the onus resting on the applicant to prove any breach of the Borders, Citizenship and Immigration Act 2009, s 55, there will be cases where the court will have to make enquiries on its own initiative. Such an approach was thought to “very rare” in SS (Nigeria) [2013] EWCA Civ 330 but McCloskey J expertly opined in MK that situation will arise more frequently, especially with the rise of self-representing litigants.

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