The Supreme Court has recently ruled that the conduct of a parent is irrelevant to the analysis of the best interests of a child, when a tribunal is considering the impact of removing that child or their parent from the UK.
The case of KO (Nigeria) and Others v Secretary of State for the Home Department  UKSC 53, looked at the treatment of “qualifying children” and their parents, under the statutory regime contained in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), as well as a related issue under Part 7 of the Immigration Rules. Part 5A of the 2002 Act is headed “Article 8 of the ECHR: Public Interest Considerations” and was introduced by section 19 of the Immigration Act 2014. By section 117A it is to apply where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under article 8, and would so be unlawful under section 6 of the Human Rights Act 1998.
KO (Nigeria) sets out the Supreme Court’s most recent interpretation of the public interest question when applied to qualifying children, defined as persons under the age of 18 who are British or a have lived in the United Kingdom for a continuous period of seven years or more.
Handing down judgment in four linked appeals, the central question was whether, in determining whether it is “reasonable to expect” a qualifying child to leave the UK with a parent (section 117B(6) or para 276ADE(1)(iv) of the Immigration Rules), or whether the effect of deportation of the parent on the child would be “unduly harsh” (under section 117C(5)), the tribunal is concerned only with the position of the child, not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal.
Paragraph 276ADE(1)(iv) of the Immigration Rules provides that a child be permitted to remain where the child “has lived continuously in the 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”. Section 117B of the 2002 Act contains similarly worded provisions. Section 117C of the 2002 Act dictates when foreign criminals might be permitted to remain in the UK and when they should be deported and imposes a duty to assess the impact of deportation where a parent has a genuine and subsisting relationship with a qualifying partner or child and the effect of the foreign criminal’s deportation on the partner or child would be unduly harsh.
The appellants submitted that the immigration history and parental conduct, or any wider public interest factors in favour of removal, play no part in the tribunal’s determination. The Government submitted that the relevant provisions warrant a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with the parent’s removal or deportation.
The Court held that the purpose of Part 5A of the 2002 Act is to produce a straightforward set of rules, intending to reduce discretion in taking public interest into account, and to be consistent with the general principles relating to the ‘best interests’ of children. According to the Court, para 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and such a requirement cannot be read in by implication. Equally, section 117B of the 2002 Act does not include criminality as a consideration, although Lord Carnwath recognised that the immigration status of the parent or parents is indirectly relevant to the consideration of whether it is reasonable for a child to leave the UK. Finally, the Court held that the hurdle of ‘unduly harsh’ in section 117C does not require a balancing of relative levels of severity of the parent’s offence, having already been considered in the structured assessment required by that provision.
This judgment will undoubtedly be welcomed as positive for appellants, one which promotes children and parents’ rights in the face of negative Home Office decisions. However, following the entanglement of conflicting and confusing decisions regarding the regime introduced by the 2014 Act that preceded it, it remains to be seen how effective the impact of this ruling will be and how consistently it will be applied by Courts and Tribunals moving forward.
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