NA (Bangladesh) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Underhill,Singh LJ,Warby LJ
Judgment Date24 June 2021
Neutral Citation[2021] EWCA Civ 953
Docket NumberCase No: C5/2020/0350

[2021] EWCA Civ 953

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

Immigration and Asylum Chamber

Upper Tribunal Judge Stephen Smith

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lord Justice Singh

and

Lord Justice Warby

Case No: C5/2020/0350

Between:
NA (Bangladesh)
SB (Bangladesh)
YS (Bangladesh)
YA (Bangladesh)
Appellants
and
Secretary of State for the Home Department
Respondent

Mrs Alison Harvey (instructed by Capital Solicitors) for the Appellants

Ms Hafsah Masood (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 23 rd February 2021

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

The First Appellant is a Bangladeshi national born on 16 October 1966. He came to this country on 17 April 2005 on a visitor visa and overstayed. The Second Appellant is also a Bangladeshi national, born on 11 November 1984. She came to this country as a student in 2009 and overstayed following the expiry of that leave. She and the First Appellant married in this country: the exact date is not clear from the papers. They have two sons, YS, who was born on 21 July 2010, and YA, who was born on 19 October 2017. Both children have Bangladeshi nationality. (I should note that on 11 November 2020 YS became a British citizen, but it was common ground before us that that fact was immaterial for our purposes since it post-dates the decision which is the subject of the original appeal.)

2

On 5 April 2018 the First Appellant applied, on behalf of himself and his wife and children, for leave to remain on the basis of their private life in the UK. On 16 August 2018 that application was refused. All four appealed to the First-tier Tribunal. By a decision promulgated on 14 May 2019 First-tier Tribunal Judge Bart-Smith dismissed the appeals. The Upper Tribunal subsequently found an error of law in that decision but re-made it by again dismissing the appeal: both decisions were made by Upper Tribunal Judge Stephen Smith and were promulgated on 6 September and 11 November 2019 respectively.

3

This is an appeal against that decision with the permission of Hickinbottom LJ. Mrs Alison Harvey appears for the Appellants and Ms Hafsah Masood appears for the Secretary of State.

4

Hickinbottom LJ gave permission because he regarded the appeal as raising an issue of general importance about the correct approach to paragraph 276ADE (1) (iv) of the Immigration Rules and section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (which falls under Part 5A of the Act). I start by identifying how those two provisions are relevant in the present case.

5

So far as YS is concerned, his claim is based on paragraph 276ADE (1) (iv) of the Rules, under which a person under the age of 18 will be entitled to leave to remain if they have “lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect [them] to leave the UK”. YS had at the time of the Secretary of State's decision lived in the UK for more than seven years, and it is the Appellants' case that it would not be reasonable to expect him to leave the UK.

6

As for the parents and YA, it is accepted that none of them are entitled to leave to remain under the Rules. However, they contend that their removal would be a breach of their right to respect for their private and family life under article 8 of the European Convention on Human Rights and accordingly unlawful under section 6 of the Human Rights Act 1998. Their removal would clearly be an interference with that right, but the question is whether it is justified under article 8 (2) by reference to the public interest. By virtue of section 117A (2) of the 2002 Act a court or tribunal considering such a question must have regard to section 117B. The parents rely on section 117B (6), which reads:

“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.”

“Qualifying child” is defined by section 117D (1) as

“a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more”.

YS has at all material times been a qualifying child under alternative (b) because he has lived here for more than seven years. There is no dispute that both parents have a genuine and subsisting parental relationship with him, and accordingly that element (a) in subsection (6) is satisfied. Thus the only issue, as regards the parents' claim, is whether, as required by element (b), it was reasonable to expect YS to leave the UK. If it was not, the parents would be entitled to leave to remain, and YA would have to be given leave to remain with them.

7

Thus for all four Appellants, albeit by formally distinct routes, the question for the Upper Tribunal was whether it was reasonable to expect YS to leave the UK. I will refer to that as “the reasonableness question”. I will also for convenience refer to the effect of paragraph 276ADE (1) (iv) and section 117B (6), as regards a qualifying child who qualifies under limb (b) of section 117D (1), as “the seven-year provision”; and to such a child as a “seven-year child”.

8

The decision of the Upper Tribunal was that it was reasonable to expect YS to leave the UK with his parents. I need not summarise the Judge's reasoning as regards the facts because the grounds of appeal are limited to specific challenges to the approach which he took as a matter of law. Three grounds are pleaded, although, as will appear, it is the first which is the most substantial. I will take them in turn.

GROUND 1

INTRODUCTION

9

It was the Appellants' case that in considering the reasonableness question the Upper Tribunal should proceed on the basis that it would not be reasonable for a seven-year child to be expected to leave the United Kingdom unless there were “powerful reasons to the contrary” – a proposition that was referred to below (not very aptly) as “the powerful reasons doctrine”. It was said that such an approach was required by the decision of this Court in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093.

10

The Upper Tribunal Judge rejected that submission on the basis that the relevant reasoning in MA (Pakistan) was inconsistent with the decision of the Supreme Court (in substance on appeal from MA) in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273. The Judge analysed the two decisions with care at paras. 27–35 of his Reasons. I need not set the passage out since I shall have to consider them for myself.

11

Ground 1 is, in substance, that it was an error of law for the Upper Tribunal to hold that “the powerful reasons doctrine” did not survive KO. Before I turn to that issue I should make two points by way of preliminary.

12

First, this Court has already had to consider the meaning of section 117B (6) in the light of KO (Nigeria) in two cases – Secretary of State for the Home Department v AB (Jamaica) [2019] EWCA Civ 661, [2019] 1 WLR 4541, and Runa v Secretary of State for the Home Department [2020] EWCA Civ 514, [2020] 1 WLR 3760. Neither was directly concerned with the present issue, but they do clear some of the ground. In short:

(1) Paras. 40–47 and 54–57 of the judgment of Singh LJ in AB (Jamaica) contain a helpful explanation, which is rather fuller than I have found it necessary to give at para. 6 above, of how section 117B (6) fits in to the structure of the law in cases of this kind. Also, both Singh LJ and I explained that the essential question underlying the phrase “reasonable to expect” is simply whether it would be reasonable for the child in question to have to leave the UK: see his judgment at para. 73 and mine at para. 116.

(2) Runa makes clear that section 117B (6) is not an exhaustive statement of the effect of article 8, and that if it is not satisfied it does not follow that a proportionality assessment is not required. Rather, it is “a benevolent provision”, which has the effect, in a case where it applies, that the public interest is treated definitively as not requiring the parent's removal: it “can only operate in one way, potentially in favour of an appellant but never adversely to an appellant” – see para. 32 of Singh LJ's judgment. (I make a similar point about section 117C (4) and (5) at para. 60 of my judgment in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176, [2021] 1 WLR 1327.)

13

Second, it is of course axiomatic that all immigration decisions affecting a child must treat his or her best interests as a primary consideration. It is, however, well-established that those interests may be outweighed by the public interest in the removal of the child or its parents: the most authoritative summary is that given at para. 10 of the judgment of Lord Hodge in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690. It follows that the best interests of the child are not determinative of the question whether it is reasonable to expect them to leave the United Kingdom. At para. 47 of his judgment in MA (Pakistan) Elias LJ said:

“The concept of ‘best interests’ is … a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return.”

Likewise, at para. 54:

There is nothing intrinsically...

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