On the 24th October 2018, the Supreme Court handed down judgment in four linked cases known collectively as KO (Nigeria) and Others v Secretary of State for the Home Department  UKSC 53. Charlotte Bayati of Goldsmith chambers, led by Stephen Knafler QC,represented two appellants and their families linked and referred to as one of the four appellants, NS and others, in their appeal that considered the best interests of children in cases where they, or their parents, face removal from the UK. The note set out below contains Chambers’ assessment of the judgment.
The Supreme Court determined that the conduct of a parent is irrelevant to the assessment of the impact of the removal on a child when considering the “reasonableness” or, in the context of deportation cases, the “undue harshness” test.
Lord Carnwarth sets out the starting point at Paragraph 15:
“I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the “best interests” of children, including the principle that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (see Zoumbas v Secretary of State for the Home Department  UKSC 74,  1 WLR 3690, para 10 per Lord Hodge).”
Paragraph 276ADE(1)(iv) of the immigration rules provides that a child is permitted to remain where they have “lived continuously in the UK for at least 7 years and it would not be reasonable to expect the applicant to leave the UK”. In his judgment, agreed with by the other 4 justices, Lord Carnwath finds that Paragraph 276ADE(1)(iv) is directed solely to the child and concludes that it 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. Lord Carnwarth noted that unlike the rule’s predecessor – the old Home Office child 7-year policy DP5/96 – Para 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor .
Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 is similar to Paragraph 276ADE(1)(iv) except that it is directed this time to the context of the right of the parent to remain, as opposed to the child in their own right. Again, Lord Carnwath determined that the statutory provision was intended to have the same effect, i.e. the question being again what is “reasonable” for the child. Lord Carnwarth usefully reiterates an extract from Elias LJ’s judgment in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber)  EWCA Civ 705,  1 WLR 5093, Para 36: that there is nothing in the subsection to import a reference to the conduct of the parent. Lord Carwarth also notes that s.117B sets out a number of factors relating to those seeking leave to enter or remain under Article 8 ECHR, but factors of criminality and good character or conduct are not part of these. S.117B(6) is on its face free-standing, the only qualification being that the person relying on it is not liable to deportation .
However at Paragraph 18, Lord Carwarth sets out that in both contexts, either through Paragraph 276ADE(1)(iv) or s.117B(6), it will be “inevitably relevant” to consider where the parents are expected to be since it is well established that it will normally be reasonable for the child to be with them. To that extent, Lord Carnwarth finds that the record of the parents’ conduct may become “indirectly material”, if it leads to their ceasing to have a right to remain in the UK and having to leave. Therefore, it is only if it would not be reasonable for the child to leave with them, following such an assessment, that the provision contained in s.117B may give the parents a right to remain.
Trying to relay these principles into more practical terms, Lord Carnwarth leans on two citations from SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245 and EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874 highlighting that an assessment as to what is reasonable to expect in relation to a child needs to be undertaken “in the real world in which the children find themselves”, meaning against which context a tribunal is having to assess their best interests – for example, are both of the child’s parents facing removal, or just one ? .
With regards to the ‘unduly harsh’ test, which features in the deportation immigration rules and s.117C of the 2002 Act, Lord Carnwarth addresses this at Paragraph 20-23 of his judgment. He concludes that the relevant provisions are also self-contained but states the following [emphasis added]:
“On the other hand the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department  EWCA Civ 932,  1 WLR 240, paras 55, 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.”
In considering NS’s and AR’s appeals, Lord Carnwath concluded that the Upper Tribunal judge’s conclusion, read in its full context, did not involve any error of approach. The Upper Tribunal judge was entitled to regard the parents’ conduct as relevant to the extent that it meant that they had to leave the country, and to consider the position of the child on that basis under s.117B. Therefore, the appeal was dismissed.
The other 3 appeals were also dismissed as Lord Carnwath found that the Supreme Court’s determination did not affect the correctness of the Upper Tribunal’s decisions and there were no errors of approach.
A full copy of the Supreme Court judgement can be found here.
Related barristers: Charlotte Bayati