FACTS: KO entered the UK unlawfully in 1986 and has no leave to enter or remain. He has a wife, a step-daughter, and four children with his wife. The four children were born between 28 August 2005 and 9 August 2013 and are British citizens. The step-daughter who has indefinite leave to remain was born on 23 December 1997 and is now an adult. KO is a “foreign criminal” as defined in section 117D(2) of the 2002 Act, having been convicted in August 2011 of conspiracy to defraud and sentenced to imprisonment for 20 months. On 8 April 2014, the Secretary of State decided to deport him. A determination of the First-tier Tribunal allowing his appeal was set aside by the Upper Tribunal while preserving certain findings of fact, and directions made for a resumed hearing.
In a decision dated 25 September 2015, UT Judge Southern took the view that in applying the “unduly harsh” test it was necessary to take account of the criminality of the parent. In that respect he differed from the view recently taken by the Upper Tribunal in MAB ( USA) v Secretary of State for the Home Department  UKUT 435 16 June 2015 (UT Judge Grubb and Deputy UT Judge Phillips) (“ MAB ”). He determined that it would not be “unduly harsh” for the children to remain in the UK with their mother if KO were deported, but indicated that he would have reached a different view if required to focus solely on the position of the children. On 20 April 2016, the decision in KO was upheld by the Court of Appeal.
ISSUE: The Appellants’ case is that in determining whether it is “reasonable to expect” a child to leave the UK with a parent (under section 117B (6)), or whether the effect of deportation of the parent on the child would be “unduly harsh” (under section 117C (5)) the tribunal is concerned only with the position of the child, not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal.
DECISION: In resolving the cases before it, the SC had to contend with two inter-related issues as to:
1. the best approach in determining when it will be unreasonable to require a non-British child who had been residing in the UK for 7 years or more to leave the UK under the provision of paragraph 276ADE (1)(iv) of the Immigration Rules and;
2. whether the court or tribunal in considering the public interest to deport should take into account the misconduct of a foreign criminal when assessing whether the effect of such deportation on a child with whom that foreign criminal has parental relationship is unduly harsh under section 117C(5) of Nationality, Immigration and Asylum Act 2002 .
The U.K Supreme Court in a judgment given on 24 October 2018, upheld the decision of the lower courts in the KO case jointly heard with three other appeals involving linked issues as to the treatment of “qualifying children” and their parents, under the law and Immigration Rules in the UK. A “qualifying child” is defined for this purpose as a person under the age of 18 who is a British citizen, or “(b) has lived in the United Kingdom for a continuous period of seven years or more”
REASON: The Supreme Court concluded that the bad conduct of parents should not jeopardise the Best Interests principle of Children under UK Immigration law and Rules. In doing so, the court remained faithful to the original understanding that it is irrelevant when assessing whether it is reasonable for a child to leave the UK with an offending parent; to have regard to the criminal or non-criminal conduct of a parent when evaluating whether the parent’s and/or child’s removal would be disproportionate under Article 8
The Court further rejected the Secretary of State argument that the provisions of section 117C(5) and section 117B(6)), require a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with removal or deportation of the parent and made a persuasive case for judicial restraint in light of 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) and secondly that consideration must be given to the “best interests” of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874, para 58:
DECISION HIGH POINTS
1. When considering whether it will be reasonable for a child who had lived in the UK for 7 years to leave the UK the sole question should be what is reasonable within the context of the child’s family life; the criminality or misconduct of the child’s parent is irrelevant.
2. If it is considered unreasonable for a child to leave the UK, the child should be granted leave to remain in the UK regardless of the criminality or misconduct of the parent.
3. If it is found unreasonable for a qualifying child to leave the UK, a parent who is not facing deportation on criminal grounds should equally be granted leave to remain in the UK because of the child where such a parent is shown to have a genuine and subsisting parental relationship with the child.
4. While it is relevant to consider where the parents are expected to be and it will normally be reasonable for the child to be with them if it will not be reasonable for the child to leave the UK with the parents the child and the parents should be granted leave to remain in the UK. This is a clear departure from the Home Office long-held position that it is not unreasonable to require a qualifying child to leave the UK where the child will be leaving together with the parents to their country of origin. In other words, the fate of the parent(s) determines that of the qualifying child. It is, therefore, a piece of cheering news that this position has now been reversed by the Supreme Court.
5. With regards to deportation cases involving foreign criminals, a higher huddle is required for the foreign criminal to show that it will be unduly harsh for the child to remain in the UK without the parent or unduly harsh for the child to leave the UK with the parent.
The Author, Augustine Otor-Osagie, is a partner at Dominion Solicitors LLP. For expert advice on any aspect of UK Immigration and Asylum laws, applications and appeals contact us at telephone number +44 (0) 121 554 9702 or email: [email protected]
Disclaimer: The opinion expressed here is entirely that of the author. It is not intended to replace your need to seek independent legal advice.