Supreme Court gives guidance on meaning of “reasonableness” and “unduly harsh” in children’s cases

Wed, 24 Oct 2018

Barrister - Manjit Gill QC 2018

KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53

In a short judgment handed down today in a group of cases, the Supreme Court has given guidance on the meaning to be attached to s117B(6) of the Nationality Immigration and Asylum Act 2002 and to a similar provision in paragraph 276ADE(1)(iv) of the Immigration Rules, and also to s117C(5) of the 2002 Act.  

Section 117B(6) concerns non-deportation cases. It provides that, in the case of a child who is British Citizen or has been residing in the UK for a continuous period of seven years or more (a “qualifying child”), the public interest does not require removal if it would not be reasonable to expect the child to leave the UK. Paragraph 276ADE(1)(iv) has a similar effect.

In a short endorsement of the approach favoured by McCloskey J, the former President of the Upper Tribunal (IAC), the Supreme Court has held that the question of “reasonableness” must be looked at without consideration of the criminal or other misconduct of a parent. The court accepted the appellants’ submission that the matter has to be looked at from the point of view of the child.

Where there is a removal decision, the reason why the question arises at all will be that it is the parent who will have been ordered to be removed, and to that extent, this may have an indirect effect on the issues to be considered. The question of reasonableness will therefore arise in that context, as that is the trigger for having to consider the question at all; but it must nevertheless be considered without regard for the misconduct of the parent. The Court treated s117B(6), paragraph 276ADE(1)(iv), as “standalone” provisions. It rejected the Home Office position that these provisions can be affected by other extraneous considerations to do with the public interest.

The Supreme Court has therefore agreed with the view of reasonableness that would have been adopted by the Court of Appeal in the MA (Pakistan), Pereira, and others [2016] EWCA Civ 705 group of cases but for the binding decision of a different division of the Court of Appeal in MM (Uganda) and KO (Nigeria) [2016] EWCA Civ 617.

Section 117C(5) concerns deportation cases. It provides an exception to the rule that deportation of “foreign criminals” is in the public interest. The exception applies if the effect on a “qualifying child” would be “unduly harsh”. The Court held that this provision is also a stand-alone provision but the phrase “unduly harsh” requires a more serious impact on the child, an impact that is severe or bleak. The Court stated that this does not impose a requirement to go as far as to show “very compelling circumstances”. This therefore overturns the decisions in MM (Uganda) and KO (Nigeria), so far as the legal analysis of s117C(5) is concerned.

Manjit S. Gill QC of No5 Barristers’ Chambers, leading Anas Khan and Ripon Akther, instructed by Thompson & Co Solicitors, represented the appellant Pereira, a case concerning paragraph 276ADE(1)(iv) of the Rules. Mr Pereira had succeeded in the Court of Appeal to the extent of getting a remittal to the Upper Tribunal. He appealed to the Supreme Court partly because that remittal would otherwise have taken place on an incorrect view of the law. Fortunately, the law has now been clarified.

View judgment here: https://www.supremecourt.uk/cases/docs/uksc-2016-0107-judgment.pdf

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