NS (Sri Lanka) and Ors concerns whether section 117B(6) of the 2002 Act permits parental conduct to be taken into account when answering the vexing question of the reasonableness of expecting a child with seven years’ residence to leave the UK. The Equality and Human Rights Commission is intervening in these appeals. NS, AR and CW – the appellants – are Sri Lankans who in October 2008 applied for further leave to remain under the decommissioned Tier 1 (Post-Study Work) route and relied on fraudulently produced references and qualifications from The Cambridge College of Learning (CCL). The decision in NA and others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 is clear that CCL never ran the postgraduate diploma in business management course upon which NS, AR and CW relied to obtain their visas. Since they were involved in a scam, the concerned decision-makers refused their respective applications and those of their dependants by applying paragraph 322(1A) of the Immigration Rules because false documents had been submitted. CW’s son was born in the UK in May 2008. AR’s daughter was born in September 2002. NS’s two daughters were born in October 2002 and November 2008 respectively. Therefore, both AR and NS had a child who had been in the UK for seven years. After taking their course through the appellate system, these cases were grouped together and reheard by UTJ Perkins who dismissed the appeals under the rules and found the evidence to be unpersuasive.
The appellants’ lengthy residence in the UK made it possible to argue that they fell within the parameters of paragraph 276A(1) and satisfied the 10-year rule for indefinite leave to remain. No applications had been made but UTJ Perkins found powerful reasons to refuse ILR. Remarking that CCL had come to an “undistinguished end”, he concluded that compelling reasons existed to remove NS, AR and CW because they had dishonestly used false documents. Their wives did not necessarily know of these falsities. But since they remained in the UK solely on the basis of being with their husbands, removing them was a proportionate interference with their private and family lives. The children’s position was more problematic. Two of them were “qualifying children” because they satisfied the seven year rule. UTJ Perkins construed section 117B(6) widely and refused to read it to preclude the public interest in removal. The primacy of the children’s interests warranted them remaining in the UK but the tribunal nevertheless found that it would be “outrageous” for NS, AR and CW to be allowed to remain in the UK and it was preferable for them to leave with their dependants.
They retaliated by arguing that it was illegitimate to focus on parental conduct. But noting the carefulness of the decision, Elias LJ held that UTJ Perkins had been entitled to strike the proportionality balance as he did. In Zoumbas [2013] UKSC 74, Lord Hodge approved seven core principles derived from the apex court’s own weighty jurisprudence of which the final one requires that:
A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
The same point was made in EV (Philippines) [2014] EWCA Civ 874 where the court held that the best interests of the child must be determined by reference to the child alone without reference to the immigration history or status of either parent. Bearing that in mind, Elias LJ acknowledged that UTJ Perkins breached that maxim by treating the children’s status as precarious. However, the court nevertheless held that overall the judgment was not vitiated by this defect because focusing on the very powerful public interest in the fathers’ removal was material to the proportionality analysis. It was not possible to divorce the parents’ own conduct from their own situation. Questions of the wider public interest were relevant and any prejudice caused to the children was a manifestation of the parents’ misconduct. A multi-factorial analysis was appropriate.
However, the internal contradictions riddling these cases are intense and despite her father’s dishonest conduct NS’s daughter VKS – who was born in Sri Lanka in 2002 but has lived in the UK since 2004 and is virtually British – is a model student with high aspirations like any other intelligent child. Removing her from the UK because her father used false documents results in “outrageous” and unnecessary injustice.
In KO (Nigeria) the issue for the Supreme Court is whether a court or tribunal is entitled to take into account parental misconduct when deciding whether the effect of deportation on a child with whom the foreign criminal has a parental relationship would be “unduly harsh” under section 117C(5) of the NIAA 2002 and paragraph 399 of the rules. KO is a Nigerian who illegally entered the UK in 1986. Four of his young children are British citizens and his wife and eldest daughter have ILR. Related to £98,000 of fraudulent banking and credit card fraud, his conviction for conspiracy to make false representations resulted in him being sentenced to 20 months’ imprisonment and his wife, a co-defendant, received a community sentence. His deportation was pursued but the FTT allowed his appeal because deporting him would be unduly harsh on his children.
Remaking the FTT’s decision after setting it aside, the UT dismissed KO’s appeal because the FTT failed to take into account the public interest in deportation when considering whether the effect of his deportation would be unduly harsh on his children. The tribunal rejected the approach in MAB (USA) [2015] UKUT 435 because KO failed to establish that the impact of his deportation upon his children would be unduly harsh. Thus the rules in paragraph 399 did not apply and paragraph 399A was also not engaged. One thing that stood out about KO was his rather lengthy 28-year residence in the UK. But it was entirely unlawful with the result that little weight could be ascribed to any resulting private life and “nothing” in the case came “even close to displacing the public interest arguments.”
The Court of Appeal upheld the UT’s decision in proceedings known as MM (Uganda) & KO (Nigeria) [2016] EWCA Civ 450 where Laws, Vos and Hamblen LJJ judged that the greater the public interest in a foreign criminal’s removal, the more difficult it will be to demonstrate that the effect on his child or partner will be unduly harsh. Laws LJ held that MAB – where the guidance in MK (Sierra Leone) [2015] UKUT 223 had been applied – was wrongly decided because it was a mistake to evaluate the concept of undue harshness by concentrating entirely upon the impact on the innocent family member, without referring to the seriousness of the offence.
The court unanimously dismissed KO’s appeal and Laws LJ judged that it is not possible to turn a blind eye to “all the circumstances” which of course include the immigration history and criminal conduct of the person in question. Accordingly, his Lordship decided against examining the “unduly harsh” effects of a criminal’s deportation on his child or partner in a vacuum. As for the true construction of “unduly harsh”, the court held that:
22. … Plainly it means the same in section 117C(5) as in Rule 399. “Unduly harsh” is an ordinary English expression. As so often, its meaning is coloured by its context. Authority is hardly needed for such a proposition but is anyway provided, for example by VIA Rail Canada [2000] 193 DLR (4th) 357 at paragraphs 35 to 37.
The public interest in deporting foreign criminals and the necessity of conducting a proportionality assessment of any interference with article 8 rights remained the two contextually important factors in KO’s case. The tribunal fell into error in MAB by ignoring the mixture of these factors, the first of which is attested by Parliament in section 117C(1). It was equally clear to the court that the words in section 117C(2) – exponentially linking the public interest in deporting foreign nationals to the gravity/seriousness of the offences committed by them – are written for the purpose of steering courts and tribunals “towards a proportionate assessment of the criminal’s deportation in any given case.” In Laws LJ’s view:
24. Any other approach in my judgment dislocates the “unduly harsh” provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case.
The term “unduly” could not be mistaken for “excessive”, which conveys a different idea. What is due or undue is underpinned by all the circumstances in any given case, and not merely the impact on the child or partner. In KO’s case, the relevant circumstances certainly included the criminal’s immigration and criminal history.
A lacuna in learning existed in properly understanding undue harshness. Neither the immigration directorate instructions (which are not a source of law) nor the learning on the use of the term in the context of internal relocation issues, far removed from paragraphs 398-399 of the rules, arising in refugee law did it justice. Indeed, as held by Lord Bingham in Januzi [2006] 2 AC 426, context is important and “all must depend on a fair assessment of the relevant facts.” Therefore, it followed that MAB was wrongly decided and:
26. … The expression “unduly harsh” in section 117C(5) and rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal’s immigration and criminal history.
An obvious flaw in Laws LJ’s judgment is his over reliance on MF (Nigeria) [2013] EWCA Civ 1192 and associated jurisprudence which asserts that the rules constitute a “complete code” for evaluating article 8 claims by foreign criminals facing deportation. Notably, in Hesham Ali [2016] UKSC 60 (see here), Lord Reed observed, and indeed corrected, the misconstruction of the approach in subsequent cases such as LC (China) [2014] EWCA Civ 1310 and AJ (Angola) [2014] EWCA Civ 1636 where some suggestion exists that the rules unilaterally govern appellate decision-making. Equally, Lord Wilson expressed regret at his earlier reference in OH (Serbia) [2008] EWCA Civ 694 to “society’s revulsion” playing a part in the public interest in deporting foreign criminals. The Supreme Court instead found value in utilising a “balance sheet” approach to weigh up the pros and the cons and enable clear decision-making in first instance tribunals and appellate courts.
While Laws LJ’s attraction to the “complete code” approach is misconceived in light of Hesham Ali, even before that judgment Elias LJ opined that the approach was to be deprecated for other reasons. Expressing rather strong reservations about Laws LJ’s interpretation of statute, Elias LJ understood section 117C(5) to be “in substance a free-standing provision in the same way as section 117B(6)”. Preferring not to distinguish his own approach, he bowed down to Laws LJ’s questionable analysis and explained that but for the earlier decision he would have held otherwise. In relation to section 117C(5), Elias LJ deciphered that:
43. … The language of “unduly harsh” used in that subsection is not the test applied in article 8 cases, and so the argument that the term is used as a shorthand for the usual proportionality exercise cannot run. I would have focused on the position of the child alone, as the Upper Tribunal did in MAB.
Some of the Justices were clearly perplexed by the government’s argument that the traditional approach to article 8 still remains at large after public interest considerations were placed on a statutory footing under the Immigration Act 2014. Interestingly, during the hearing Lord Reed and Lord Carnwath repeatedly quarrelled with the proposition that parental conduct should play any part in the analysis because of the fact that Parliament has already assessed the public interest. While reasonableness was an open question in the past, the provisions in section 117C(6) and section 117C(5) are targeted to dictate the outcome of appeals because Parliament has so willed.
Lord Briggs, on the other hand, was intrigued by the idea whether a “binary choice” – or a choice between two alternatives – needs to be made in these cases. It was stressed to the Justices that the statutory scheme must purely be steered by the child’s best interests because the human dimension in these appeals must not be neglected and children must not be scapegoated for their parents’ infidelities. The next post examines the appeal in IT (Jamaica).
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