When is it reasonable to expect a child to leave the UK?
Dr Bernard Andonian
The judgement in the above matter which was handed down on Wednesday the 24 October 2018 is significant in giving guidance to the meaning to be attached to section 117B (6) of the Nationality Immigration and Asylum Act 2002, and to a similar provision in paragraph 276 ADE (1) (iv) of the immigration rules and also to section 117C (5) of the 2002 Act.
Section 117B (6) concerns non-deportation cases. It provides that in the case of a child who is a British citizen or has been residing in the UK for a continuous period of at least seven years or more but who is under 18, and therefore a qualifying child, the public interest does not require removal if it would not be reasonable to expect the child to leave the UK.
Section 117 (A) (b) and 117(c) were inserted in the 2002 Act by virtue of section 19 of the Immigration Act 2014 and came into force on 28 July 2014. It was brought into force in order to deal with the public interest considerations when applying article 8, family and private right issues to applications or appeals with respect to the right to remain in the UK.
Section 117A stipulates as follows: – (i) this part applies where a court or tribunal is required to determine whether a decision made under the immigration Acts (a) breaches a person’s right to respect for private and family life under article 8; and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. It goes on to say that (2), in considering the public interest question, the court or tribunal must (in particular), have regard (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of a foreign criminal, to the considerations listed in section 117C. Furthermore, the section goes on to state that (3) in subsection (2), the public interest question means the question of whether an interference with a person’s right to respect for private and family life is justified under article 8(2).
The 2002 Act with regards to section 117 goes on to state with respect to 117B, article 8: – public interest considerations applicable in all cases: – that (1) the maintenance of effective immigration control is in the public interest. (2) it is in the public interest, and in particular in interest of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English(a) are less of a burden on taxpayers, and (b) are better able to integrate into society. (3) it is in the public interest and in particular in interest of the economic well-being of the United Kingdom, that persons who seek to enter or remain in United Kingdom are financially independent because such persons- ( a) are not a burden on taxpayers, and( b) are better able to integrate into society, ( 4) little weight should be given to (a) a private life, or( b) a relationship formed with a qualifying partner, that is established by person at the time when the person is in the United Kingdom unlawfully. (5) little weight should be given to a private life established by person at a time when the person’s immigration status is precarious. Then there follows sub- paragraph (6) which is part of the decision in the Supreme Court judgement, that in the case of a person who is not liable to deportation, the public interest does not require the persons removal where- ( a) the person has a genuine and subsisting parental relationship with a qualifying child, and( b) it would not be reasonable to expect the child to leave the Kingdom.
As can be noted from the above subparagraph (6), this concerns non-deportation cases. It refers to a qualifying child who is a British citizen or has been residing in the United Kingdom for a continuous period of seven years or more. See section 117D which defines who is a qualifying child in that regard. When considering the question of private life under paragraph 276 ADE (i) (iv) of the immigration rules, this has a similar provision insofar as reasonableness is concerned. It states the requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant (i) does not fall for refusal under any of the grounds in section S – LTR 1.2 to S – LTR 2.3 and S – LTR .3 .1 in appendix FM and ((ii) has made a valid application for leave to remain on the grounds of private life in the UK; and is under the age of 18 and has lived continuously in UK for at least seven years, discounting any period of imprisonment, and it would not be reasonable to expect the applicant to leave the UK.
Prior to the KO Supreme Court judgement , the Secretary of State was of the view that the Home Office and tribunal judge when having regard to the seven year rule and in particular when applying the reasonableness test, can take into consideration parental misconduct in the form of illegal entry, unlawful overstaying or illegal working, private life formed or developed during periods of unlawful or precarious residence in the UK and that despite the fact that the child’s best interests may be to remain in the UK, they could therefore be refused leave to remain in particular in circumstances where their parents are taken to have shown a disregard of immigration laws, by remaining illegally in the UK, or by the conduct, fraudulent or otherwise.
The Supreme Court decision clarified the position in this regard that the question of reasonableness must be viewed without consideration of the criminal or other misconduct of a parent. The court must look at the position from the point of view of the child and not the parent. After all it is not the child’s fault if the parent had bad conduct in the UK.
The Court treated section 117B (6) and paragraph 276 ADE( i) (iv) as standalone provisions i.e. without regard to further qualification by parental misconduct.
With respect to deportation, the Supreme Court considered also whether a court or tribunal, when considering the public interest in deportation, should take into account parental misconduct assessing whether the effect of deportation on a child with whom the foreign criminal has a parental relationship, is unduly harsh under the 2002 Act, section 117C (5), or the immigration rules, paragraph 399, in considering also the weight to be given to the public interest in this situation.
Section 117C of the 2002 Act must be additionally considered in cases involving foreign criminals. The section goes on to state as follows: – (i) the deportation of foreign criminals is in the public interest. (2) the more serious the offence committed by foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal who has not been sentenced to a period of imprisonment of four years or more the public interest requires the person’s deportation unless exception 1 or exception 2 applies. (4), Exception 1 applies where ( a), the person to be deported has been lawfully resident in the United Kingdom for most of their life, ( b) is socially and culturally integrated in the United Kingdom, and ( c) they would be very significant obstacles to their integration into the country to which it is proposed for the person to be deported. (5), Exception 2 applies where the person to be deported has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child and the effect of the person’s deportation on the partner or child would be unduly harsh. ( 6), In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances over and above those described in exceptions one and two . ( 7), Subsections( i) to( 6) are to be taken into account when a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
The Supreme Court held that the question of unduly harsh is also to be looked as a standalone provision, without reference to the parent’s criminality, and requires there to be a more serious impact on the child that is severe or bleak by the parent’s deportation. The court went on to state that this impact on the child that is to be severe or bleak does not have to go as far as to show to be very compelling circumstances. The requirement of very compelling circumstances with respect to the serious impact on the child in the court below was therefore overturned insofar as the analysis of section 117C (5) is concerned when dealing with the qualifying adjective unduly harsh as to the effect on the child of the parent’s deportation.
In conclusion, the Supreme Court has clarified what many practitioners already knew, in that the parents misconduct whether under the deportation or non-deportation provisions, must in reality be considered from the point of view of the child, and their best interests, although it recognises that the harshness on the child of the parent’s deportation will be rather more than it would be in a non-deportation scenario. This must be the correct approach, taking into account that by virtue of the deportation of the parent, the child, it is reasonable to conclude, in most circumstances, would not be able to see that parent for an indeterminate period of time.
Dr Andonian is a guest contributor at Legafit.com. DR Andonian has been a practicing lawyer for over 30 years and also sits as a Judge of the First-tier Tribunal (IAC). He has been at the forefront of legal developments both as a practicing lawyer and a s a Judge, and has demonstrated his unique skills, through his writing, in untangling complex legal phenomenons and distilling them down to basic concepts that can be understood by everyone.