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On appeal from: [2016] EWCA Civ 450, [2016] EWCA Civ 932, [2016] EWCA Civ 705, [2016] EWCA Civ 1091

These appeals considered whether a court or tribunal, when considering the public interest in deportation, should take into account parental misconduct when assessing whether the effect of deportation on a child (with whom the foreign criminal has a parental relationship) is ‘unduly harsh’ under the Nationality Immigration and Asylum Act 2002, s 117C(5) or the Immigration Rules, para 399, considering also the weight to be given to the public interest in this situation. They also considered the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under the Immigration Rules, 276ADE(1)(iv).

The Supreme Court unanimously dismissed the appeals. The Court held that the purpose of Part 5A of the 2002 Act is to produce a straightforward set of rules, intending to reduce discretion in taking public interest into account, and to be consistent with the general principles relating to the ‘best interests’ of children. The Court considered that rule 276ADE(1)(iv) 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. Equally it considered that s 117B of the 2002 Act does not include criminality as a consideration, though it recognised that this may indirectly become relevant if an individual’s record impacts where they will be, and so where their dependent child will be. The Court held that the hurdle of ‘unduly harsh’ in s 117C  does not require a balancing of relative levels of severity of the parent’s offence, and does not require ‘very compelling reasons’.

As regards the specific cases, in KO the Supreme Court concluded that the Upper Tribunal judge was wrong to decide that he should take account of the criminality of the parent in applying the “unduly harsh” test but that his overall conclusion was correct. In IT  the Supreme Court concluded that the Court of Appeal was wrong to introduce a “compelling reasons” test and to proceed on the basis that the assessment of harshness required the “nature of offending” to be considered, but followed the Cort of Appeal in remitting the case to the Upper Tribunal due to an error of the First-Tier Tribunal. In NS, the Supreme Court concluded that the Upper Tribunal judge was entitled to regard the parents’ conduct as relevant to the extent that it meant they had to leave the country, and to consider the position of the child on that basis. Finally, in Pereira, the Supreme Court agreed with the Court of Appeal’s order for the case to be remitted to the Upper Tribunal for a fresh determination, though concluded that, as AP is now 19, the matter may be disposed of by agreement.

For judgment, please download: [2018] UKSC 53
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing , please visit: Supreme Court Website (17 Apr 2018 morning session) (17 Apr 2018 afternoon session) (18 Apr 2018 morning session) (18 Apr 2018 afternoon session)