Children and the Seven Year Itch

R (MA (Pakistan) & Ors) v UTIAC & Anor [2016] EWCA Civ 705 (07 July 2016)

The divergence of views on what is or is not important about the 7-year rule means that nothing really makes sense anymore. Unsurprisingly, there is consensus that the law in this context is too fluid and requires clarification and comprehensive guidance from the highest court in the land. This notable “child centred” decision involved six appellants, four from Sri Lanka and two from Pakistan. MA and AP’s appeals involved applications under the Immigration Rules by children and NS, AR, CW and AZ’s appeals were connected to applications made by parents under section 117B(6) of the NIAA 2002 (as amended). The court held that in giving consideration to whether it was reasonable to remove a child from the UK under paragraph 276ADE(1)(iv) of the rules and section 117B(6), a court or tribunal should not simply focus exclusively on the child but must also have regard to the wider public interest considerations, including the conduct and immigration history of the parents. The outcome came under attack because the judiciary again “disgorged another important but unhelpful decision”. But then again it is also true that people serially overstay their visas and seven years go by quickly, especially if you have children, and on that analysis the madness must be stopped.

The key issue in these proceedings was about the manner in which the court should approach the question of reasonableness. Since the critical question involves whether it would be unreasonable for the child to be expected to leave the UK, Elias LJ said at para 13 that the court should approach rule 276ADE(1)(iv) and section 117B(6) in the “same way” because they are “similarly framed”. Stripping things down to a manageable formula, the Court of Appeal was of the view that courts and tribunals only need to ask the following questions when applying section 117B(6). First, is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C. Second, does the applicant have a genuine and subsisting parental relationship with the child? Third, is the child a qualifying child as defined in section 117D? And finally, is it unreasonable to expect the child to leave the UK? If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that article 8 is infringed.

Context

The length of residence of their children is a question overstayer parents are quite preoccupied with. They think that the mere fact that their child is born in the UK and is seven years old should count as a weighty enough factor for them to be granted leave to remain. Unsurprisingly, people therefore pursue the dilatory tactic of remaining under the woodwork until their child is old enough to save the day for them. When the child is seven then the time to come back on the authorities’ radar naturally arrives: or so many people think.

I am not attacking such individuals or supporting the disgraceful home office but they are very annoying as they think that they are doing society a favour by remaining in the UK illegally. As this judgment shows NS, AR and CW were enrolled at the fraudulent Cambridge College of Learning – see NA and others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 – but this did not hinder them from attempting to remain in the UK by using their children.

All counsel agreed that the analysis of the reasonableness test must be entrenched in ZH (Tanzania) [2011] UKSC 4 but there was disagreement about the factors that could permissibly be considered when applying this test. As for the legislation and the rules both section 117B(6) and rule 276ADE(iv) require seven years’ residence and ask a key question about whether it would be unreasonable for the child to be expected to leave the UK. The child exclusive rule is private life based and applies as at date of application whereas section 117B counts seven years from when the court makes its determination.

Specifically under section 117B(6): In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the UK. The court said at para 15 that even though the executive is not bound by this it would nevertheless “be bizarre for her to depart from Parliament’s view of the public interest as reflected in the legislation, and if she were to do so in a manner prejudicial to the individual, it would simply invite appeals.”

The Court of Appeal

It was argued that a child’s best interests and reasonableness as regards expulsion are “two sides of the same coin” with the result that once it is known that it was in the child’s best interests to remain in the UK, it would be unreasonable to require her/him to leave – nothing else mattered. After conducting a rigorous analysis of statute, Elias LJ favoured the appellants’ narrow construction of statute and held that no doubt existed that section 117B(6) must be read as a self-contained provision. Parliament has vouchsafed that where the conditions set out in the subsection have been met, the public interest will not justify removal.

Clearly, unless either explicitly or implicitly permitted by the subsection itself, giving regard to public interest considerations is not legitimate. Yet despite the secluded nature of section 117B(6), the subsection did not necessarily produce the strict result of comprehensively picking out every ingredient that a court can take into account that the wider pubic interest criteria – including the factors listed in section 117B(1) to (5) – are of no relevance to applications falling within the scope of section 117B(6). Ultimately, that is a question of the significance and use of the term “reasonable” in the context of asking whether it would “not be reasonable to expect the child to leave”.

The overall result involves answering the question whether anyone in the family has leave at all. In EV (Philippines) [2014] EWCA Civ 874 (see here), after giving some thought to the principles articulated in ZH (Tanzania) and Naidike [2004] UKPC 49, ending the perennial “free for all”, Lewison LJ succumbed to what he retrogressively termed a “real world” analysis of best interests of children and held at para 58 “if neither parent has the right to remain, then that is the background against which the assessment is conducted.”

The home office argued that this method should be used when applying the reasonableness test, which is a variant of the usual proportionality test with the difference that a child’s residence of seven years points to it being unreasonable for her/him to leave. Construing the provision too generously created the dilemma that because it will be relatively rare for it to be reasonable to expect a child who is a British citizen to leave the UK, and the approach contended for by the appellants allows “many applicant parents who have unjustifiably and unlawfully stayed in the UK to remain here by clinging to the coat tails of the child.”

So, pursuant to the wider interpretation, it was appropriate to take into account all other relevant considerations bearing upon the public interest, including the conduct and immigration history of the applicant parents. To bolster the approach in EV (Philippines), where of course the seven-year benchmark remained unsatisfied on the facts, the home office mounted numerous other arguments but the court was unreceptive to these.

Elias LJ did not deny that his interpretation of statute opened the door to “undeserving applicants being allowed to remain”. Yet that was a poor reason for “distorting the language of the section” because the executive could in any event preclude people from relying on the provision by rendering them liable to deportation on conducive grounds. Therefore, favouring the narrow interpretation, the court held:

36. Looking at section 117B(6) free from authority, I would favour the argument of the appellants. The focus on paragraph (b) is solely on the child and I see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest.

Finding strong counterpoints against the arguments advocated by the home office the court was not attracted to the proposition that section 117B(6) is merely the usual proportionality test restated. Accepting this meant that section 117B(6) had been “drafted in an extremely convoluted way to achieve so limited an aim” whereas the “objective could have been achieved much more clearly and succinctly.” The approach contended by the executive amounted to making section 117B(6) “tautologous”. Equally, the structure of rule 276ADE(1) was such that no consideration of the wider public interest under paragraphs (v) and (vi) was warranted beyond the suitability requirements specified in paragraph (i). It was difficult to see – “not obvious” – why paragraph (iv) should demand otherwise.

Even though Elias LJ favoured the narrow interpretation, this conflicted with the earlier judgment of Laws LJ in MM (Uganda) [2016] EWCA Civ 450 (see here) where the broader approach contended for by the executive was upheld while interpreting the “unduly harsh” concept under section 117C(5). Since the court needed to assess the applicant’s conduct and other issues connected to the public interest as a result of MM (Uganda), it needed to follow suit when considering the question of reasonableness under section 117B(6).

Elias LJ made plain the fact that unlike Laws LJ he approved of the decision in MAB (USA) [2015] UKUT 435 (IAT) where focus was provided exclusively to the detrimental effect on the innocent child and it was said that no balancing exercise between the public interest in deportation and the impact of removal on the child was needed. The court said that both section 117B(6) and section 117C(5) are freestanding provisions and Elias LJ found it inappropriate to distinguish MM (Uganda) because his Lordship remained seriously circumspect about its correctness. He therefore tackled the appeals on the wider basis with the result that:

45. … that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.

The court did not accept the complaint that too generous an interpretation of the rule amounted to the scrapped DP5/96 policy – which doled out greater rights to overstayers in comparison to those remaining lawfully – because as seen in NF (Ghana) [2008] EWCA Civ 906, the policy’s point of departure was to only allow refusal of leave to a child with seven years’ residence in exceptional circumstances. No such presumption was evinced in section 117B(6) and the stakes were even higher for foreign criminals relying on their children to continue their stay in the UK. Equally, the underlying point in MAB (USA) was simple enough. Treating the best interests of the child as a primary consideration using seven years’ residence or British citizenship as a benchmark or compass meant that the benefit received by “undeserving families” was an acceptable price to pay in a democratic society.

On the other hand, other potential banana skins were traceable to the decision in EV (Philippines) [2014] EWCA Civ 87 and even if the narrow test were applied and the child was provided core focus it was by no means inevitable that leave must be granted every time the child’s best interests were in favour of remaining because it might still not be unreasonable to require her/him to leave. The outcome needed a careful evaluation of the nature and magnitude of the links in the UK and in the country of proposed return. Even so:

47. … What could not be considered, however, would be the conduct and immigration history of the parents.

Authorities such as H(H) [2013] 1 AC 338 and H v Lord Advocate [2012] UKSC 308 made it clear that the best interests of the child in the context of an article 8 assessment were such that the court was not obliged to approach the matter in any set way. Elias LJ rejected the proposition that the scope of these cases was limited only to extradition and held that their reach was much wider: It makes sense to begin with the child’s best interests but in the final analysis it was not important how the balancing exercise was conducted so long as the child’s best interests were treated as a primary consideration.

One of the key points enumerated by Lord Hodge in Zoumbas [2013] UKSC 74 was that it is wrong to blame a child for matters for which he or she is not responsible, such as the conduct of a parent. Thus in EV (Philippines) it was held that the best interests of the child should be evaluated by reference solely to the child, i.e. without reference to the immigration history or status of either parent and so it was wrong to render the child’s status precarious purely because that was true of the parents. Lord Hodge was setting out the importance of making a full and careful assessment of the best interests of the child before any balancing exercise can be undertaken. Without this a danger existed that the child’s interests would be disregarded because their full significance has been undervalued and Elias LJ held:

57. … The court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child’s best interests whatever they might be, with the result that no proper assessment takes place.

In disposing of the individual cases, the appeals brought by MA, NS, AR and CW were dismissed by the Court of Appeal. AZ’s appeal was allowed. The court quashed the decision in AP and remitted to the Upper Tribunal for the issues to be determined afresh.

Comment

Despite the round of applause received by Elias LJ and his comrades for trying to part ways with Laws LJ’s unsympathetic beliefs in MM Uganda, Mr Amunwa was not satisfied that the court was clear about Azimi-Moayed (Decisions Affecting Children: Onward Appeal) [2013] UKUT 197 (IAC) and the exact threshold imposed on the decision maker regarding justifying refusing a child leave to remain after seven years’ continuous residence.

As he says, pondering over this judgment leaves the reader clueless about the new “fluid” threshold, which has been designated by the Court of Appeal as “good”, “good and cogent” and “powerful”. It is impossible to disagree because clear authority is required on this important issue so that justice can be done in practice rather than being constricted to the law reports.

Rather convincingly, he also argues that the court’s distinction between the best interests of the child and whether it is reasonable to expect him or her to leave the UK:

is an artificial distinction, as best interests and reasonableness are often so intertwined as to be inseparable. If the end result of a Judge’s analysis is that children are being punished for the sins of their parents, that does not appear to uphold the UK’s international obligations on child rights and respect for the right to family life.

It doesn’t matter how we look at it. The only thing that is certain is that the riddles surrounding children and the Seven Year Itch must end sometime soon.