Oct 24
In the first case, KO, a Nigerian national who had entered the United Kingdom unlawfully some 28 years earlier, was ordered to be deported as a “foreign criminal” within the meaning of the UK Borders Act 2007 after he had served a 20-month sentence for conspiracy to defraud. He appealed against the order on the ground that, since he had four “qualifying” children under the age of 18 who were British citizens, his deportation would breach their right to respect for private and family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and so the court was required to take account of the considerations set out in sections 117A–117C in Part 5A of the Nationality, Immigration and Asylum Act 2002, as inserted, and in particular section 117C(5) prohibiting the deportation of a foreign criminal whose sentence had been between 1 and 4 years, who had a genuine and subsisting parental relationship with a qualifying child and where the effect of his deportation on that child would be “unduly harsh.” The Upper Tribunal stated that the question of the effect on the child under section 117C(5) had to be balanced against the public interest in the deportation of foreign criminals as enunciated in section 117C(1), with section 117C(2) stating that the more serious the offence committed the greater was that public interest. It then held that the effect of deportation on KO’s children would not be unduly harsh. That dictum and its decision were both affirmed by the Court of Appeal. KO appealed on the ground that when determining whether the deportation of a parent would have “unduly harsh” effects on the child, the tribunal was precluded from having regard to the parent’s offending or any other public interest considerations underpinning the deportation decision.
In the second case IT, a Jamaican national categorised as a foreign criminal and who had already been deported, with his qualifying child remaining in the United Kingdom with his mother, sought a revocation of the deportation order in reliance on section 117C(5). The First-tier Tribunal’s decision allowing the appeal on the ground of undue harshness on the child was upheld by the Upper Tribunal, but the Court of Appeal held that the tribunals had failed to give appropriate weight to the public interest and remitted the matter for fresh consideration. IT claimed that on a proper reading of section 117C(5) (as argued in the first case) the appeal should have been allowed rather than remitted.
In the third and fourth cases, NS and AR, two Sri Lankan nationals who had not been convicted of any offence and so were not liable for deportation, provided false higher education documents in support of their applications for leave to remain, which were refused by the Home Secretary. Each appealed on the ground that since his dependant wife and his qualifying child or children would also have to leave, and that section 117B(6) of the 2002 Act, as inserted, provided that the public interest did not require the removal of a person not liable for deportation where they had a genuine and subsisting relationship with a qualifying child and it would not be “reasonable to expect” the child to leave the United Kingdom, and that it was not reasonable to expect their children, who had each been brought up as English and had only had a limited grasp of Sinhalese, to leave. Their appeals, heard jointly, were dismissed by the Upper Tribunal, which decision was upheld by the Court of Appeal. They claimed that account had wrongly been taken of their conduct when assessing whether it was reasonable to expect the children to leave the United Kingdom, and that the correct approach should have been to determine the matter solely on child-centric considerations, disregarding the immigration history and conduct of the parents, as well as any wider public interest factors in favour of removal.
In the fifth case, AP, a Sri Lankan national, at the age of 16 after his family had been refused leave to remain and had exhausted their rights of appeal, made a separate application in his own right for indefinite leave to remain under paragraph 276ADE(1)(iv) of the Statement of Changes in Immigration Rules (1994) (HC 395), as inserted and amended, on the basis of having then been under the age of 18 and having completed seven years of living continuously in the United Kingdom, and that it would not be “reasonable to expect” him to leave the United Kingdom. The Home Secretary refused the application on the ground that his parents had both been refused further leave to remain in the United Kingdom and it was not unreasonable to expect him to return to Sri Lanka with them as a family unit to continue his education there. The First-tier Tribunal allowed his appeal, the Upper Tribunal judge reversed that decision, but the Court of Appeal allowed his appeal to the extent of remitting the case to the First-tier tribunal. AP claimed that, for like reasons as those relied on in the third and fourth cases, the Court of Appeal should have allowed his appeal fully rather than remitting for rehearing.
Held, appeals dismissed. The purpose of Part 5A of the Nationality, Immigration and Asylum Act 2002, as inserted, was to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. It was to be presumed, in the absence of clear language to the contrary, that the provisions were intended to be consistent with the general principles relating to the best interests of children, including the principle that a child was not to be blamed for matters for which he or she was not responsible, such as the conduct of a parent. In a “leave to remain” case, neither section 117B(6) of the 2002 Act nor rule 276ADE(1)(iv) of the Statement of Changes in Immigration Rules contained any requirement to consider the parent’s conduct as a balancing factor. The question was whether, on the hypothesis that the parent had to leave, it was reasonable to expect the child to follow the parent with no right to remain to the country of origin. In a deportation case section 117C introduced a higher hurdle than that of reasonableness. Its use of the word “unduly” required a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent, but that fell to be considered without consideration of the severity of the parent’s offence. The word “unduly” was not intended as a reference back to the issue of relative seriousness introduced by section 117C(2). However, even in the light of section 117B(6) and section 117C(5) as so clarified the decisions of the Upper Tribunal in the first, third and fourth cases could properly be upheld, and the need for rehearing in the second case remained on other grounds. In the fifth case the Court of Appeal’s remittal order would also stand, albeit that AP was in principle able to remain under other criteria and it was possible that the case might be disposed of by agreement (paras 15–18, 20–23, 33–36, 44, 51, 55–56).
Ian Macdonald QC, Sonali Naik QC and Helen Foot (instructed by Freemans Solicitors) for KO.
Richard Drabble QC and Christian J Howells (instructed by NLS Solicitors, Newport) for IT.
Stephen Knafler QC and Charlotte Bayati (instructed by Polpitiya & Co) for NS and AR.
Manjit Singh Gill QC, Anas Khan and Ripon Akther (instructed by Thompson & Co Solicitors, Morden) for AP.
Lisa Giovannetti QC, Marcus Pilgerstorfer and Andrew Byass (instructed by Treasury Solicitor) for the Home Secretary.
Martin Chamberlain QC (instructed by Solicitor, Equality and Human Rights Commission, Manchester) for the Equality and Human Rights Commission, intervening.