KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53

The Supreme Court considered four linked appeals concerning the interpretation of Part 5A of the Nationality, Immigration and Asylum Act 2002, addressing whether parental misconduct is relevant when assessing the 'reasonableness' of a child leaving the UK or whether deportation effects on children would be 'unduly harsh'.

Facts

This judgment concerned four linked appeals raising issues about the treatment of ‘qualifying children’ and their parents under Part 5A of the Nationality, Immigration and Asylum Act 2002 (introduced by section 19 of the Immigration Act 2014), and a related issue under paragraph 276ADE(1)(iv) of the Immigration Rules.

KO (Nigeria)

KO entered the UK unlawfully in 1986. He has four British citizen children and was convicted of conspiracy to defraud, receiving a 20-month sentence, making him a ‘foreign criminal’ under section 117D(2). The Secretary of State decided to deport him in April 2014.

IT (Jamaica)

IT was convicted on four counts of supplying class A drugs and sentenced to 42 months’ imprisonment. He was deported in 2010. He has a British wife and son (R), the latter having special educational needs and microcephaly. His application to revoke the deportation order was refused.

NS (Sri Lanka)

NS and AR entered as students. Their leave to remain applications were refused on the basis they had submitted false documents in connection with a ‘scam’ involving fake postgraduate certificates. Their children had been in the UK for many years.

Pereira (AP)

AP came to the UK aged 7 as a dependant of his father. He applied for leave to remain under paragraph 276ADE(1)(iv) after seven years’ continuous residence. His application was refused.

Issues

The central question was whether, in determining:

• whether it is ‘reasonable to expect’ a child to leave the UK with a parent under section 117B(6); and
• whether the effect of a parent’s deportation would be ‘unduly harsh’ under section 117C(5);

the tribunal is concerned only with the child’s position, or whether it must conduct a balancing exercise weighing adverse impact on the child against the public interest in removal/deportation, including the parents’ immigration history and criminality.

Arguments

The appellants argued that both provisions focused solely on the child, without reference to the parents’ immigration history or wider public interest factors favouring removal.

The Secretary of State argued that both provisions required a balancing exercise, weighing adverse impact on the child against the public interest in removal or deportation, with the relative seriousness of the offence being relevant under section 117C(5) by virtue of section 117C(2).

Judgment

Lord Carnwath (with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Briggs agreed) approached the construction starting from two presumptions: that the purpose was to produce straightforward rules narrowing the scope for judicial evaluation, and that the provisions should be consistent with general principles regarding children’s best interests, including that a child must not be blamed for parental conduct (citing Zoumbas).

Paragraph 276ADE(1)(iv) and section 117B(6)

Paragraph 276ADE(1)(iv) is directed solely to the child’s position and contains no requirement to consider parental criminality or misconduct. Section 117B(6) incorporated this rule’s substance and was intended to have the same effect. The court agreed with Elias LJ in MA (Pakistan) that nothing imports a reference to parental conduct into section 117B(6).

However, parental conduct is indirectly relevant because it determines where the parents are expected to be, and it will normally be reasonable for the child to be with them. The ‘reasonableness’ assessment must be made in the ‘real world’ the children inhabit, agreeing with Lewison LJ in EV (Philippines) and Lord Boyd in SA (Bangladesh).

Section 117C(5) – ‘unduly harsh’

The court held that exception 2 in section 117C(5) is self-contained, like exception 1. The expression ‘unduly harsh’ introduces a higher hurdle than ‘reasonableness’, taking account of the public interest in deporting foreign criminals. ‘Unduly’ implies going beyond a ‘due’ level of harshness inherent in any deportation of a parent.

However, it does not require balancing the relative severity of the parent’s offence beyond the distinction the section itself draws by reference to length of sentence. Nor can ‘unduly harsh’ be equated with ‘very compelling reasons’, which would replicate the additional test in section 117C(6).

The court respectfully disagreed with Laws LJ’s approach in MM (Uganda) [2016] EWCA Civ 617, holding that MAB had been correctly decided on this point. The approach in MM (Uganda) conflicted with the Zoumbas principle that children should not bear responsibility for parental conduct.

Outcomes

In KO, despite Judge Southern’s erroneous reasoning suggesting parental criminality was relevant, his actual decision applied the correct high threshold for ‘unduly harsh’ and the appeal was dismissed.

In IT, the Court of Appeal had erred by introducing a ‘compelling reasons’ test not found in the provision, and by treating section 117C(2) as requiring ‘nature of the offending’ to be considered. However, the First-tier Tribunal had erred in proceeding on the basis that R as a British citizen could not be expected to relocate (a misreading of Sanade), and had inconsistently relied on the unsupported flying phobia. The appeal was dismissed and the Court of Appeal’s order remitting the case was confirmed.

In NS, although UTJ Perkins described the parents’ conduct as ‘outrageous’, read in context he had correctly directed himself. The parents’ conduct was relevant only because it meant they had to leave; the question was whether it was reasonable for the children to leave with them. The appeal was dismissed.

In AP (Pereira), the appeal was dismissed and the Court of Appeal’s order remitting the case to the tribunal confirmed.

Implications

The decision provides authoritative guidance on Part 5A of the 2002 Act:

• Both section 117B(6) and paragraph 276ADE(1)(iv) focus on the child’s position, not parental conduct or criminality, save indirectly insofar as parental immigration status determines where parents will be located.
• The ‘reasonableness’ assessment must be conducted in the ‘real world’, considering where the parents are expected to be.
• The ‘unduly harsh’ test in section 117C(5) is a high, self-contained threshold that does not require balancing the relative seriousness of the parent’s offence beyond the four-year sentence distinction drawn by the section itself.
• ‘Unduly harsh’ does not equate to ‘excessive’ but denotes a degree of harshness going beyond what would necessarily be involved for any child faced with parental deportation.
• The ‘very compelling circumstances’ test applies only under section 117C(6) for those sentenced to four years or more.

The decision is significant for upholding the principle that children should not be penalised for parental misconduct, while recognising the practical reality that children’s circumstances must be assessed against the real-world position of their parents. It clarifies that Parliament intended a narrower scope for judicial evaluation of public interest factors than some Court of Appeal authorities had suggested.

Lord Carnwath also commented on procedure, noting the desirability of using ‘starred decisions’ in the Upper Tribunal and the ‘leapfrog’ procedure to the Supreme Court (under section 14A of the Tribunals, Courts and Enforcement Act 2007, as inserted) to resolve such issues of statutory construction more swiftly.

Verdict: All four appeals were dismissed. In KO, the Upper Tribunal’s decision was upheld. In IT, AP (Pereira) and the related cases, the Court of Appeal’s orders remitting the cases to the tribunal were confirmed. The Supreme Court held that section 117B(6) and paragraph 276ADE(1)(iv) focus on the child’s position without reference to parental misconduct, and that ‘unduly harsh’ in section 117C(5) is a self-contained high threshold not requiring a balancing exercise weighing the relative seriousness of the parent’s offence.

Source: KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53