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Seven Year Rule: Child-Centred Decision By Supreme Courtasad-khan

The Supreme Court unanimously dismissed these appeals. But thankfully Lord Carnwath’s meticulous judgment clarified wide-ranging misconceptions in the courts below regarding the correct interpretation of the Nationality, Immigration and Asylum Act 2002 (as amended), Part 5A, ss 117A to 117D. Centrally, s 117D(1) defines a “qualifying child” as someone under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years or more. Despite the controversial nature and history of these cases, Lord Carnwath’s short but robust judgment concentrates on simplicity because the novel statutory scheme aims “to produce a straightforward set of rules” on ECHR, art 8 and public interest considerations. Whereas KO and IT concerned the meaning of “unduly harsh” in section 117C(5), NS concerned section 117B(6) and if parental conduct affects whether it would not be reasonable to expect a qualifying child to leave the UK. AP involved the Immigration Rules, para 276ADE(1)(iv) and whether it would not be reasonable to expect a child with continuous residence of at least seven years to leave the UK. As “foreign criminals” within the meaning of s 117D(2), KO, a fraudster, and IT, a drug dealer, both had British children. The FTT allowed KO’s appeal but UTJ Southern reversed the decision by holding that it would not be “unduly harsh” if the children stayed in the UK with their mother upon KO’s deportation.

After being deported, IT sought the revocation of his deportation order. At first he was unsuccessful but the FTT allowed the appeal on the basis of Sanade [2012] UKUT 48 (IAC) because his British son could not be expected to relocate outside the EU. The UT upheld this reasoning, however the Court of Appeal allowed the Government’s appeal by applying a “compelling reasons” test and assessing harshness in light of the “nature of the offending”. Fraudulently produced qualifications were used to obtain leave to remain in NS and Elias LJ held that UTJ Perkins was right to dismiss the appeal by striking the proportionality balance by accounting for parental misconduct. Presently aged 19, AP entered the UK in 2006. The FTT allowed his appeal but then the UT found otherwise. Subsequently, Elias LJ allowed AP’s appeal because of the judge’s overall failure to treat his best interests as “a primary consideration”. The maxim in Zoumbas [2013] UKSC 74 that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” remained Lord Carnwath’s point of departure and he held that Part 5A intends to be consistent with the general principles relating to children’s best interests.

Background

Essentially, the appellants submitted that the immigration history and parental conduct, or any wider public interest factors in favour of removal play no part in the tribunal’s determination of the question whether it is “reasonable to expect” a child to leave the UK with a parent under s 117B(6), or whether the effect of deportation of the parent on the child would be “unduly harsh” under s 117C(5). The Government submitted that both provisions warrant a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with the parent’s removal or deportation.

The Supreme Court

Generally speaking, Lord Carnwath – with whom Lords Kerr, Wilson, Reed and Briggs concurred – held that Part 5A deliberately establishes an uncomplicated set of rules. Its provisions decrease the need for discretionary judgment when taking account of the public interest or other factors not directly reflected in the statutory language. Importantly, the provisions presume that the new statutory system intends to be consistent with the general principles relating to children’s “best interests”. The present appeals involved a narrow point of construction of a new set of provisions aiming to clarify a contentious area of law.

The court also gave specific guidance on individual provisions. In Hesham Ali [2016] UKSC 60 and Agyarko [2017] UKSC 11 it had been established that the July 2012 changes to the Immigration Rules intended to promote consistent, predictable and transparent decision-making and to reflect an assessment of all the factors relevant to the application of art 8. Observing that Part 5A “takes that process a stage further by expressing the intended balance of relevant factors in direct statutory form,” Lord Carnwath expressed frustration over the vexing judicial disagreements that had plagued these cases earlier and he said that it was “profoundly unsatisfactory” that provisions intending to provide clear guidelines to minimise the need for judicial assessment should create such chaos in the lower courts. Adopting “a simpler and more direct approach” his Lordship held as follows.

(i) Reasonableness

First of all, the court addressed the provisions regarding the reasonableness of expecting the child to leave the UK. Unlike the withdrawn DP5/96 policy, all the ingredients of para 276ADE(1)(iv) solely address the child’s position without considering the criminality or misconduct of a parent as a balancing factor. It was “impossible” to interpret the rule otherwise and the court refused to read in such a requirement by implication. Lord Carnwath also found that criminality is not a consideration for s 117B which is free-standing subject only to the qualification that the person relying on it is not liable to deportation. Concurring with Elias LJ he held that:

  1. As has been seen, section 117B(6) incorporated the substance of the rule without material change, but this time in the context of the right of the parent to remain. I would infer that it was intended to have the same effect. The question again is what is “reasonable” for the child … there is nothing in the subsection to import a reference to the conduct of the parent.

The court opined that the factors in the relevant IDI are “wholly appropriate and sound in law”. It further noted that the IDI makes no reference at all to the parents’ criminality or immigration record as a relevant factor and in its updated form reflects that despite their parents’ abuse of the immigration process children’s best interests may surely outweigh the public interest in maintaining effective immigration control. Conversely, the IDI also acknowledges that it is inevitably relevant for both 276ADE(1)(iv) and s 117B to consider where the parents, apart from the relevant provision, are expected to be, as it will usually be reasonable for the child to remain with them. With that in mind, Lord Carnwath held:

  1. … To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain.

Endorsing the approach in SA (Bangladesh) 2017 SLT 1245 and EV (Philippines) [2014] EWCA Civ 874, the court held that the question of “reasonableness” must be considered “in the real world in which the children find themselves.” In other words, the assessment of reasonableness is a function of whether one parent has a right to remain, but the other parent does not or whether neither parent has the right to remain.

The key question is whether it is reasonable to expect the child to follow the overstayer parent to the country of origin? To that extent, Lord Carnwath disagreed with Elias LJ’s analysis in MA (Pakistan) & Ors [2016] EWCA Civ 705 at para 40 where a more mechanical, seemingly automatic, interpretation of s 117B(6) had been proposed entirely in isolation from the whole family unit’s overall circumstances.

Please see Part Two here.

This article was originally posted here.