Supreme Court to consider children’s interests in deportation and overstaying cases

Mon, 22 May 2017

In MM (Uganda) and KO (Nigeria)  [2016] EWCA Civ 617, the Court of Appeal held that section 117C(5) of the Nationality, Immigration and Asylum Act 2002 was not solely a child-focussed provision and required consideration of the public interest, even though the provision is framed as an exception in which the public interest does not require deportation. It applies in the cases where children are British Ctizens or have been in the United Kingdom for 7 years and it is not reasonable to expect them leave despite criminal conduct by a parent which might otherwise lead to deportation.

In MA (Pakistan), NS (Sri Lanka), AP (Sri Lanka) and others [2016] EWCA Civ 705 a differently constituted Court of Appeal considered section 117C(5) again and also considered the similarly expressed provision in paragraph 276ADE(1)(iv) of the Immigration Rules on the circumstances in which children who are present without leave will be given leave to remain.  The latter court expressed its disagreement  with the approach in MM (Uganda) and KO (Nigeria) whilst feeling compelled to follow it. The appeal of AP (Sri Lanka) was however allowed and remitted back to the Upper Tribunal for re-decision. As AP (Sri Lanka) considered that the matter would therefore be re-decided by the Upper Tribunal on an erroneous basis, AP (Sri Lanka) applied for permission to appeal to the Supreme Court.

The Supreme Court has now granted permission to appeal in KO (Nigeria), NS (Sri Lanka), AP (Sri Lanka) and in another case, IT (Jamaica) [2016] EWCA Civ 932, so that it can decide the correct meaning of the statute and of the rules.  

Manjit S. Gill QC represents AP (Sri Lanka)

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