KO (Nigeria) and Others v Secretary of State for theHome Department

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Reed,Lord Kerr,Lord Carnwath,Lord Briggs,Lord Wilson
Judgment Date24 October 2018
Neutral Citation[2018] UKSC 53

[2018] UKSC 53

Supreme Court

Michaelmas Term

On appeals from: [2016] EWCA Civ 617; [2016] EWCA Civ 932; [2016] EWCA Civ 705

Before

Lord Kerr

Lord Wilson

Lord Reed

Lord Carnwath

Lord Briggs

KO (Nigeria)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
IT (Jamaica)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
NS (Sri Lanka) and others
(Appellants)
and
Secretary of State for the Home Department
(Respondent)
Pereira
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellant (KO)

Ian Macdonald QC

Sonali Naik QC

Helen Foot

(Instructed by Freemans Solicitors)

Appellant (IT)

Richard Drabble QC

Christian J Howells

(Instructed by NLS Solicitors)

Appellant (NS and ors)

Stephen Knafler QC

Charlotte Bayati

(Instructed by Polpitiya & Co)

Appellant (Pereira)

Manjit Singh Gill QC

Anas Khan

Ripon Akther

(Instructed by Thompson & Co Solicitors (SW19))

Respondent

Lisa Giovannetti QC

Marcus Pilgerstorfer

Andrew Byass

(Instructed by The Government Legal Department)

Intervener (Equality & Human Rights Commission)

Martin Chamberlain QC

(Instructed by Equality and Human Rights Commission)

Heard on 17 and 18 April 2018

Lord Carnwath

( with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Briggs agree)

Introduction
1

Three of the appeals involve linked issues as to 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 fourth ( AP (Sri Lanka)) raises a related issue under the Rules.

2

Part 5A, headed “Article 8 of the ECHR: Public Interest Considerations”, was introduced by amendment with effect from 28 July 2014 (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. For these purposes, “the public interest question” is defined as the question whether such an interference is justified under article 8(2). Section 117A(2) provides:

“(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 foreign criminals, to the considerations listed in section 117C.”

3

Section 117B, applicable in all cases, lists a series of such considerations. They include in summary, the public interest in “the maintenance of effective immigration controls” (subsection (1)); the public interest in those seeking to enter being able to speak English (subsection (2)), and be financially independent (subsection (3)); the little weight to be accorded to private life or relationships established when a person was in the country unlawfully (subsection (4)), or when immigration status was precarious (subsection (5)); and (directly relevant in this case) —

“(6) In the case of a person who is not liable to deportation, the public interest does not require the person's 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 United Kingdom.”

A “qualifying child” is defined for this purpose as a person under the age of 18 who is a British citizen, or “(b) has lived in the United Kingdom for a continuous period of seven years or more” (section 117D(1)). The exclusion of persons “liable to deportation” covers non-British citizens whose deportation is deemed “conducive to the public good” and “foreign criminals” as defined by the UK Borders Act 2007 (see Immigration Act 1971 section 3(5); UK Borders Act 2007 section 32(1)-(4)).

4

Section 117C sets out “additional considerations in cases involving foreign criminals”. For this purpose a “foreign criminal” is defined by section 117D(2) as a person, who not a British citizen, and who has been convicted of an offence in the United Kingdom, if it attracted a sentence of at least 12 months, or the offence caused “serious harm” or he is a “persistent offender”. To show the more intricate structure of this section, it needs to be set out in full:

“(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where —

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C 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 C'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 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where 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.”

5

It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398–399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether “the effect” of C's deportation would be “unduly harsh” (section 117C(5)) is broken down into two parts in paragraph 399, so that it applies where:

“(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported.”

6

The Appellants' case, in short, is that in determining whether it is “reasonable to expect” a child to leave the UK with a parent (under section 117B(6)), 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. By contrast the Secretary of State argues that both provisions require a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with removal or deportation of the parent.

Paragraph 276ADE(1)(iv)
7

The fourth appeal ( AP (Sri Lanka)) raises related issues under paragraph 276ADE(1)(iv). That paragraph of the Rules comes under the heading “Requirements to be met by an applicant for leave to remain on the grounds of private life”. It reads:

“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 the application the applicant: …

(iv) is under the age of 18 years and 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.”

It will be seen immediately that the substance of this provision, in particular the seven year criterion and the “reasonableness” tests, appears identical to that of section 117B(6), taken with the definition of “qualifying child”.

8

However, in this context the so-called “seven year concession” for children has a much longer history. It was reviewed by the Upper Tribunal (McCloskey J, President, sitting with UT Judge Bruce) in PD (Sri Lanka) v Secretary of State for the Home Department [2016] UKUT 108 (IAC), [2016] Imm AR 797, paras 8ff. He traced its ancestry back to Deportation Policy 5/96 (“DP5/96”), as revised in February 1999. For present purposes it may be noted that the policy in its original form did not incorporate a “reasonableness” test, but did include in a list of relevant factors any history of criminal behaviour by the parents. Unfortunately, as the Court of Appeal graphically explained in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906, [2009] Imm AR 155, paras 22ff, the application of the policy in practice was plagued by confusion caused by differing or uncertain Ministerial and Departmental statements over the ensuing years. It was eventually withdrawn in December 2008. The accompanying Ministerial statement indicated that it would be replaced by consideration under the Immigration Rules and article 8. which would “ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA” (Hansard (HC Debates), 9 December 2008, Written Ministerial Statements, cols 49–50WS).

9

Returning to the President's account in PD, the new paragraph 276ADE(1)(iv) was first introduced with effect from 9 July 2012, but without a specific reference to “reasonableness”. The...

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