Seven Year Rule: Child-Centred Decision By Supreme Court

KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018)

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 sections 117A to 117D of Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended). Centrally, section 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 article 8 of the ECHR 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 paragraph 276ADE(1)(iv) of the Immigration Rules 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 section 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 section 117B(6), or whether the effect of deportation of the parent on the child would be “unduly harsh” under section 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 article 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 paragraph 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 section 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:

17. 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 section 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:

18. … 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 paragraph 40 where a more mechanical, seemingly automatic, interpretation of section 117B(6) had been proposed entirely in isolation from the whole family unit’s overall circumstances.

(ii) Undue Harshness

Next, the court opined that the structure of section 117C was difficult to follow as it begins by stressing that deporting foreign criminals is in the public interest; which increases with the seriousness of the offending. The unimpressive drafting led Lord Carnwath to observe that rather than expressly indicating “how or at what stage of the process those general rules are to be given effect,” section 117C is instead devoted to rules for two types of foreign criminals and two exceptions.

First, exception 1 in section 117C(4) revolves around lengthy lawful residence, social and cultural integration in the UK and very significant obstacles to integration in the country of proposed deportation. Therefore, these three factual issues define exception 1 and none of them involve the seriousness of the offence. Furthermore, exception 2 addresses the criminal’s subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and whether the net effect of the foreign criminal’s deportation on the partner or child would be unduly harsh.

Unless exception 1 or 2 applies, the public interest requires deportation of those sentenced to less than four years. To offset the public interest in deportation, foreign criminals who have been sentenced to four years or more must show “very compelling circumstances” in addition to the exceptions. Since exception 1 is self-contained, exception 2 in section 117(C)(5) also falls to be treated similarly despite being linguistically less precise than exception 1 because nothing suggests that the word “unduly” intends to refer back to the issue of relative seriousness in section 117C(2). Thus, like the reasonableness test under section 117B, exception 2 is “self-contained”. Bearing all this in mind, Lord Carnwath further deciphered that:

23. On the other hand the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.

Therefore, other than is intrinsic in the distinction drawn regarding length of sentence, the assessment does not warrant a balancing of relative levels of severity of the parent’s offence. Consequently, Arden LJ erred in IT when she held that exception 2 interlocks with a need to show “very compelling reasons” because that would essentially replicate the additional test contemplated by section 117C(6) regarding sentences of four years or more.

Drawing attention to the earlier cases, Lord Carnwath approved of the approach in MK (Sierra Leone) [2015] UKUT 223 whereby an “evaluative assessment” was necessary and “harsh” had been interpreted to mean “the antithesis of pleasant or comfortable” and “bleak” and the adverb “unduly” bolstered a high standard even further.

This uncontroversial analysis was applied in MAB (USA) [2015] UKUT 435. MAB is also the first instance in which consideration was provided to the submission that section 117C(5) required the tribunal to balance, not just the general interest in deporting foreign criminals, but also the relative severity of the particular offences. Rejecting the point, the tribunal found that “the focus is on the impact upon the individual child (or partner).”

Notably, in KO it was held by UTJ Southern that in applying the “unduly harsh” test it was necessary to take account of the criminality of the parent, a finding with which Laws LJ agreed, and that insufficient weight had been provided in MAB to the need to give effect to different levels of criminality under section 117C(2). Whereas Laws LJ incorrectly included the criminal’s immigration and criminal history in assessing undue harshness, Lord Carnwath was not persuaded of the virtues of such a reading because:

32. … Once one accepts, as the Department did at that stage (rightly in my view), that the issue of “reasonableness” under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2).

Laws LJ’s flaw was exposed by the statutory purpose of reducing the scope for judicial evaluation. It was hard to decide whether consequences that are deemed unduly harsh for an insurance fraudster’s son may be acceptably harsh for a drug dealer’s son and Lord Carnwath found the invidious juxtaposition to directly conflict with the key principle in Zoumbas that the child should not be held responsible for the conduct of the parent.

(iii) Disposal

Despite UTJ Southern’s unnecessary departure from MAB, his overall approach had not been materially different to MAB or MK. Thus, his main reasoning was difficult to fault because he took no account of the seriousness of the offences or of the parent’s criminal history, which the Supreme Court accepted as correct and therefore dismissed KO’s appeal.

Dismissing the other appeals, Lord Carnwath held that Arden LJ was mistaken in her view that the assessment of harshness required the “nature of the offending” to be considered. Yet the FTT proceeded incorrectly without evidence that IT’s child, as a British citizen, could not be expected to relocate outside the UK because VM (Jamaica) [2017] EWCA Civ 255 confirmed that the concession made in Sanade was wrongly proffered.

The approach of UTJ Perkins in NS was right and it was open to him to regard the parents’ conduct as relevant to the extent that it meant they had to leave the UK, and to consider the position of the child on that basis. Since he was aged 19, in principle AP qualified for leave to remain under rule 276ADE(1)(v) and it was thus possible to dispose of the appeal by agreement failing which it fell to be considered in accordance with the law stated in the court’s judgment without passing an order.

(iv) Judicial Comity and Leapfrogging

Since it took four years for these appeals to reach the apex court, and given the abundance of conflicting decisions below, Lord Carnwath remained unimpressed with the changing narrative of the authorities and the uncertainty accompanying the judicial treatment of the “unhappy drafting” of part 5A of the 2002 Act.

He observed that UTJ Southern unnecessarily broke with judicial comity by sidelining MAB and he pointed to the desirability of quickly achieving a definitive interpretation of such important provisions by the utilisation of the relevant Practice Directions provided for “starred decisions” to be treated as authoritative at the UT level. Such uncertainty in the UT could have been resolved by choosing a suitable case for such treatment. Although this neat solution would not have eliminated disagreements in the Court of Appeal, it was nonetheless true that sections 14A and 14B of the Tribunals, Courts and Enforcement Act 2007 provide for leapfrog appeals from the UT to the Supreme Court. Lord Carnwath concluded overall that this procedure was suitable for application in future cases raising comparable issues and requiring quick resolution in the public interest.

Comment

Through this child-centred judgment, the Supreme Court has finally unlocked the many mysteries of the seven year rule. Some caution is appropriate however because apart from AP – whose case can proceed in the UT on a correct interpretation of the law if necessary – all the other appellants failed in their appeals. The ruling also might potentially benefit foreign criminals more than overstaying parents who have breached immigration controls because the latter category’s “record … may become indirectly material.” By concentrating on the Zoumbas principle, Lord Carnwath made it absolutely crystal clear that the child should not be held responsible for the conduct of the parent.

But perhaps equally so, somewhere behind the scenes lurks the clear concession made by Manjit Gill QC himself in ZH (Tanzania) [2011] UKSC 4 that even the weighty fact of a child’s British citizenship is not “dispositive in every case” and cannot be treated as a “trump card” for the foreign parent to stay in the UK. Ultimately, the historical record from the earlier deport first, appeal later saga also shows that the Court of Appeal is slow to cede territory to the Supreme Court in contentious immigration matters and so the show must go on.