Upper Tribunal (Immigration and asylum chamber), 2019-03-15, [2019] UKUT 72 (IAC) (JG (s 117B(6): “reasonable to leave” UK (Rev 1)))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Gill |
| Status | Reported |
| Date | 15 March 2019 |
| Published date | 15 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | s 117B(6): “reasonable to leave” UK (Rev 1) |
| Hearing Date | 15 February 2019 |
| Appeal Number | [2019] UKUT 72 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 00072 (IAC) Rev 1
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 February 2019 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GILL
Between
JG
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr D Bazini, instructed by SH Solicitors Ltd
For the Respondent: Mr Z Malik, instructed by the Government Legal Department
Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so.
DECISION AND REASONS
A. SECTION 117B(6)
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Few if any statutory provisions of recent years can have been subject to more judicial analysis than those contained in Part 5A (Article 8 of the ECHR: Public interest considerations) of the Nationality, Immigration and Asylum Act 2002. The primary focus in the present appeal is section 117B(6), which provides:-
“(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.”
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Section 117B(6) lies within the section which sets out “public interest considerations applicable in all cases” where a court or tribunal has to determine whether a decision made under the Immigration Acts constitutes a disproportionate interference with a person’s right to respect for private and family life under Article 8 of the ECHR. Section 117A(2) states that, in considering this “public interest question”, the court or tribunal must, in particular, have regard in all cases to the considerations listed in section 117B.
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Section EX of Appendix FM (Family members) to the Immigration Rules contains exceptions to certain eligibility requirements for leave to remain as a partner or parent. So far as relevant, EX.1 provides as follows:-
“EX.1. This paragraph applies if
(a)(i) the applicant has a genuine and subsisting parental relationship with a child who -
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or
…”
B. CASE LAW BEFORE KO (NIGERIA)
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Amongst the problems identified with section 117B(6) were its relationship with the other provisions of section 117B and whether, in determining if it would be reasonable, or not, for the child in question to leave the United Kingdom, regard should be had to the immigration history of the person having the genuine and subsisting parental relationship with the child.
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In MA (Pakistan) & Ors v Upper Tribunal [2016] EWCA Civ 705, the Court of Appeal held that section 117B(6) was free-standing in nature; but that the Court was bound by the decision of that Court in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450 to hold that the immigration history of the person having the parental relationship was relevant in determining the reasonableness of expecting the child to leave the United Kingdom.
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So far as the first issue was concerned, Elias LJ, giving judgment in MA, held:-
“17. Subsection (6) … does not simply identify factors which bear upon the public interest question. It resolves that question in the context of article 8 applications which satisfy the conditions in paragraphs (a) and (b). It does so by stipulating that once those conditions are satisfied, the public interest will not require the applicant's removal. Since the interference with the right to private or family life under article 8(1) can only be justified where there is a sufficiently strong countervailing public interest falling within article 8(2), if the public interest does not require removal, there is no other basis on which removal could be justified. It follows, in my judgment, that there can be no doubt that section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the subsection itself.
18. Ms Giovannetti QC, counsel for the Secretary of State, argued otherwise. She contended that there may be circumstances where even though the provisions of paragraphs (a) and (b) are satisfied and the applicant is not liable for deportation, the Secretary of State may nonetheless refuse leave to remain on wider public interest grounds. But as she had to accept, that analysis requires adding words to subsection (6) to the effect that where the conditions are satisfied, the public interest will not normally require removal, because on her approach, sometimes it will. I see no warrant for distorting the unambiguous language of the section in that way.
19. In my judgment, therefore, the only questions which courts and tribunals need to ask when applying section 117B(6) are the following:
(1) Is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C.
(2) Does the applicant have a genuine and subsisting parental relationship with the child?
(3) Is the child a qualifying child as defined in section 117D?
(4) Is it unreasonable to expect the child to leave the United Kingdom?
20. If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that article 8 is infringed.”
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As for the scope of enquiry into “reasonableness” for the purposes of section 117B(6)(b), Elias LJ made it clear that, but for the authority of MM (Uganda), he would have favoured an analysis that confines itself to the position of the child:-
“36. Looking at section 117B(6) free from authority, I would favour the argument of the appellants. The focus on paragraph (b) is solely on the child and I see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest. I do not deny that this may result in some cases in undeserving applicants being allowed to remain, but that is not in my view a reason for distorting the language of the section. Moreover, in an appropriate case the Secretary of State could render someone liable to deportation, and thereby render him ineligible to rely on this provision, by certifying that his or her presence would not be conducive to the public good.
37. Ms Giovannetti's analysis has a number of difficulties. First, as she accepts, it means that the only effect of subsection 117B(6) would be to give some additional weight to the fact that the child has been resident in the UK for seven years. (Similarly it would require the court to give additional weight to the fact that a child is a British citizen, although that would need to be done quite irrespective of the section, as ZH makes clear.) Save for that, the proportionality test is applied as in any other article 8 case. If that is right, section 117B(6) is in my view drafted in an extremely convoluted way to achieve so limited an aim. The objective could have been achieved much more clearly and succinctly.
38. Second, Ms Giovannetti's construction makes subsection 117B(6) tautologous. In effect it comes down to saying that "the public interest does not require removal … in circumstances where the application of the proportionality test does not justify removal." That would seem to be self-evident.
39. Third, in relation to rule 276ADE(1) it is plain that paragraphs (v) and (vi) of that rule do not warrant any consideration of the wider public interests than have been specifically identified in paragraph (i). It is not obvious why paragraph (iv) should do so.
40. It may be said that the wider approach can be justified along the following lines. It will generally be in the child's best interests to live with his or her parents and siblings as part of a family. That is usually a given especially for younger children, absent domestic abuse or some other reasons for believing the parents to be unsuitable. The approach of the Secretary of State means that the stronger the public interest in removing the parents, the more reasonable it will be to expect the child to leave. But it seems to me that this involves focusing on the position of the family as a whole. In cases where the seven year rule has not been satisfied, that is...
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