The Supreme Court’s decision in KO (Nigeria)  UKSC 53 (discussed here) was a seminal judgment. Yet it was seen as “deeply unsatisfactory” in some respects because Lord Carnwath left open the question of “reasonableness” by holding that the best interests assessment must be conducted in “the real world in which the children find themselves.” In doing so his Lordship endorsed the approach in SA (Bangladesh) 2017 SLT 1245 and EV (Philippines)  EWCA Civ 874 that the child’s right to remain does not automatically guarantee that the parents will be granted leave to remain as well. In the present case, Mr Justice Lane held that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so. He rejected the idea that paragraphs 18 and 19 of KO (Nigeria) support a construction of section 117B(6)(b), whereby the application of subsection (6) depends upon a tribunal finding, on the particular facts of the case, that the child will be expected to leave the UK if the person concerned is removed. Instead, he preferred the submission that such a construction is not possible, purely as a matter of statutory interpretation, and that nothing in KO (Nigeria) permits the tribunal to hold otherwise. The Court of Appeal has upheld his core reasoning in AB (Jamaica)  EWCA Civ 661.
Lane J made the preliminary point that the provisions addressing article 8 of the ECHR and public interest considerations in Part 5A of the 2002 Act have received an intense amount of judicial analysis in comparison to normal laws. He rejected the claim that a full-blown proportionality assessment, taking full account of the immigration history of the parent subject to removal, is nonetheless required in cases where the child would not in practice leave the UK. In Lane J’s view, it was pointless to persist that there could still be a very real difference between the outcome of the proportionality assessment and an appraisal pursuant to section 117B(6) because if “Parliament has decreed a particular outcome by enacting section 117B(6), then that is the end of the matter.” The appellant “JG” was “both dishonest and unscrupulous, each to a high degree”. Consequently, it was clear that this interpretation permitted an undeserving individual or family to remain in the UK. Indeed, in reality Parliament had legislated “to be more generous than is strictly required by the Human Rights Act 1998” and in MA (Pakistan)  EWCA Civ 705 it was recognised that Part 5A has the aim of imposing greater consistency in decision-making in this area by courts and tribunals.
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. Section 117B sets out public interest considerations applicable in all cases involving article 8 where a court or tribunal has to determine whether a decision made under the Immigration Acts constitutes a disproportionate interference with a person’s right to respect for private and family life under article 8.
Furthermore, section 117A(2) requires that, in considering this “public interest question”, the court or tribunal must, in particular, have regard in all cases to the considerations listed in section 117B and 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.
JG, a Turkish national, “flagrantly defied the law” by overstaying, by knowingly making entry clearance applications “on an entirely false basis” and by gaining access to the UK by employing dishonesty. She entered the UK on an au pair visa in 2001 and overstayed. She began a relationship with a British citizen in 2009 and the couple had a son in 2010 and a daughter in 2011. The entire family went to Turkey for 17 months in 2013 after which JG’s partner and children returned home to the UK but she was twice refused entry to return to the UK. Thereafter, she fraudulently acquired a Schengen visa and used it to unlawfully enter the UK October 2014.
She then made a human rights claim in order to remain with her partner and children in 2016 which was refused in 2017 and the appeal was also dismissed in 2018. The Upper Tribunal then set the decision aside for inadequate reasoning on the part of the First-tier Tribunal. Critically, the definitive feature in JG’s case was that her removal would not result in her children following her to Turkey. Instead they would stay with their father and attend school in the UK.
But JG submitted that the point was irrelevant because section 117B(6) does not depend upon what is likely to happen in the “real world”. Instead, the provision requires the tribunal to hypothesise that the children would leave the UK and ask whether that would be reasonable.
The Upper Tribunal
Lane J and UTJ Gill took the opportunity to extract paragraphs 29 to 33 of Lady Hale’s judgment in ZH (Tanzania)  UKSC 4 – to which KO (Nigeria) did not expressly refer – because it shows how the provision in the subsection derives from the duty in immigration decision-making to give primacy to children’s best interests. Lady Hale remarked that nationality is not a “trump card”.
Nevertheless, it is particularly important in assessing the best interests of any child and article 7 of the UNCRC 1989 recognises the right of every child to be registered and acquire a nationality and article 8 preserves children’s identity, including their nationality. Indeed the intrinsic importance of citizenship should not be played down because British children will not be able to enjoy core rights by moving to another country such as “the advantages of growing up and being educated in their own country, their own culture and their own language.” Loss of these benefits cannot be justified by relocation to another country in violation of their right of abode or separation from a parent with whom they enjoy a close relationship. Returning to the UK as adults will not rectify the damage suffered by living in another country and will come at a high cost to the children.
In paragraph 29 of ZH (Tanzania), Lady Hale asked the crucial question “whether it is reasonable to expect a child” to go to another country? None of the decided cases prior to KO (Nigeria) shed any light on the question of construction at play in the present case and making an assessment on the basis of paragraphs 18 and 19 the Upper Tribunal said that “to expect” something is to regard that thing as likely to happen and therefore:
25. … The key question, therefore, is whether the element of conditionality which is introduced by the word “would” in section 117B(6)(b) governs both the question of reasonableness and that of expectation; in other words, whether one must hypothesise that the child leaves the United Kingdom, whether or not in the “real world” he or she is likely to do so.
The ordinary principles of statutory construction, the interpretation contended for by JG, were the correct one because “the question Would it be reasonable to do X? presupposes the doing of X. It is unlikely to be an appropriate or helpful response to such a question to refuse to answer it on the basis that one does not intend to do X.” Therefore, it was incorrect to say that paragraphs 18 and 19 of KO (Nigeria) necessitate a construction of section 117B(6)(b), whereby the application of subsection (6) is dependent on a tribunal finding, in a fact specific way, that the child will be expected to leave the UK upon the parent’s removal. On the other hand, the Upper Tribunal held that:
27. We do not consider that paragraphs 18 and 19 of KO (Nigeria) mandate or even lend support to the respondent’s interpretation. In those paragraphs, the point being made by Lord Carnwath and by the judges in the cases he cited is merely that, in determining whether it would be reasonable to expect the child to leave the UK, one must have regard to the fact that one or both of the child’s parents will no longer be in the UK, because they will have been removed by the respondent under immigration powers. That, we find, is the extent of the “real world” envisaged by Lord Carnwath.
Support for such an approach was found in comparing section 117B(6) with the provisions of the Immigration (European Economic Area) Regulations 2016 that are designed to give effect to the UK’s obligations under EU law to comply with the line of cases beginning with Ruiz Zambrano (C-34/09, EU:C:2011:124). The derivative right of residence found in the regulations revolves around the fact that, in very tightly defined circumstances, “the third party would be unable to reside, or would be prevented from residing, in the UK, if the person asserting the derived right of residence were to leave.” Describing the difference between regulation 16 and section 117D(6) as “stark”, the Upper Tribunal noted that in Patel  EWCA Civ 2028 it was clear to the Court of Appeal that the primacy of “compulsion” is rather plain when it comes to Zambrano.
An analogy with paragraph 399 of the Immigration Rules, which concern criminal deportation, was also instructive and the text of the rules makes it clear that an analysis of the facts is required, leading to the formation of a judgment, on the assumption (or hypothesis) dually that the child would leave in order to go with the deportee and that the child would remain in the UK without the deportee.
In the sphere of criminal deportation, the judgment is informed by findings of fact and involves conclusions as to what is likely to happen in those scenarios but it is not possible for the tribunal to bypass or both of them on the basis that it considers they are unlikely to occur. This was the long established legal position and Lane J found no reason to interpret section 117B(6) in a different way despite the fact that it is not concerned with criminal deportation. In KO (Nigeria) the Supreme Court had opined that the factors in Family Migration: Appendix FM Section 1.0b are “wholly appropriate and sound in law” and Lord Carnwath had regard to that IDI in his examination of section 117B(6).
Among other things, the latest version of the IDI mentions KO (Nigeria) in aid of the proposition that the “reasonableness” is to be considered in the real world context in which the child finds itself and that the parents’ immigration status is a relevant fact to establish that context. Furthermore, if a child’s parents are both expected to leave the UK, the child is normally expected to leave together with them, unless evidence is available that that this would not be reasonable.
Overall three points about the IDI required elaboration. First, ordinary principles of statutory construction cannot simply be overridden by the IDI and the views expressed in the IDI are irrelevant if, applying those principles of construction, a court or tribunal determines that a statutory provision falls to be interpreted in a specific way. Second, the IDI does not rely on KO (Nigeria) to propose that rule EX.1.(b) or section 117B(6) fall to be considered only where the child would be required to leave the UK. Instead, it mentions KO (Nigeria) to merely recognise that in making a decision on what would be reasonable, regard must be given to the fact that one or both parents is liable to removal under immigration powers.
Third, the IDI that pre-dated KO (Nigeria), stated that the question of whether it was reasonable to expect the child to leave would not arise if the departure of a parent would not result in the child being required to leave the UK. However, as UTJ Plimmer noted in SR (subsisting parental relationship – s.117B(6)) Pakistan  UKUT 334 (IAC), the IDI “provides an untenable construction of the plain and ordinary meaning of EX.1. and section 117B(6)”. Hence, she held that “self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK”. Pointing out that KO (Nigeria) did not affect the accuracy of her conclusion, the Upper Tribunal held that:
39. We do not consider our construction of section 117B(6) can be affected by the respondent’s submission that, in cases where – on his interpretation – the subsection does not have purchase (i.e. because the child would not in practice leave the UK), there would nevertheless need to be a full-blown proportionality assessment, compatibly with the other provisions of Part 5A of the 2002 Act, with the result that a person with parental responsibility who could not invoke section 117B(6) may, nevertheless, succeed in a human rights appeal.
40. Such an assessment would, however, have to take account of the immigration history of the person subject to removal; so there could well be a very real difference between the outcome of that exercise, and one conducted under section 117B(6). But, the real point is that this submission does not begin to affect the plain meaning of subsection (6). If, as we have found, Parliament has decreed a particular outcome by enacting section 117B(6), then that is the end of the matter.
41. We accept that this interpretation may result in an undeserving individual or family remaining in the UK. However, the fact that Parliament has mandated such an outcome merely means that, in such cases, Parliament has decided to be more generous than is strictly required by the Human Rights Act 1998. It can be regarded as a necessary consequence of the aim of Part 5A of imposing greater consistency in decision-making in this area by courts and tribunals. The fact that section 117B(6) has such an aim was expressly recognised by Elias LJ at paragraph 44 of MA (Pakistan).
Next, the Upper Tribunal considered and assessed the evidence tendered by JG and her partner. She predicated her case by asserting that as a mother she was in a “difficult predicament” and urged the tribunal to forgive her for her deceit, lies and clandestine re-entry into the UK because she desperately needed to “get back to my children”. She said that she returned to Turkey to spend time with her father who was terminally ill with cancer. She said that her children did not speak Turkish and that both of them were baptised as Roman Catholics. Both of them were in year 3 in a Roman Catholic primary school.
She said under cross-examination that she had hidden her immigration problems from her partner until 2012 after their children had been born. She also said that the lies in her entry clearance applications were the work of an agent who stated that she would only visit the UK for two weeks and had properties and earnings of £1,100 per month. She admitted to lying in the past but said that she made “a huge mistake”. Despite her poor history she claimed to be “of good character in her heart”, a “helpful and kind person” with friends and family. She said that it would be disruptive for the children to be removed from their environment in the UK and they would have to repeat classes if they returned to Turkey while she obtained entry clearance.
Her partner said that his family lived rent-free in his parents’ home, and could do so for as long as they liked. It would not be right to expect the children to have to go to Turkey, where standards of education, health and other benefits are lower than the UK. The children were accustomed to the British way of life. They could not even recollect going to Turkey. They were making good progress attending school in the UK and sending them off to Turkey would come at the cost of the termination of their English based education in a Roman Catholic primary school and exposure to an alien Islamic education in the equally alien Turkish language. He also said that obtaining visas in Turkey in the police station was hassle free. The partner, who held Italian nationality and owned several properties in Italy, confirmed that he did not find out about the JG’s immigration status until around 2011/2012.
The Upper Tribunal found that JG was highly dishonest and unscrupulous and had no respect for the UK’s laws. She was essentially a liar who would fabricate anything to suit her purposes. Even her partner directly contradicted her claim that she was caring for her terminally ill father in Turkey. But the panel accepted that they did not mean to relocate permanently to Turkey when they had visited there for 17 months in 2013. Applying the “real world” analysis envisaged by Lord Carnwath, the assessment of whether it would be reasonable in terms of section 117B(6) to expect JG’s children and her partner to leave the UK fell to be determined on the basis that there are powerful reasons why the appellant should be removed.
The Upper Tribunal agreed with the government’s view that in order to maintain public confidence in the UK’s system of immigration control it would be proportionate in a case such as the present to insist upon her returning to Turkey in order to make “an honest application for entry clearance.” On a conventional view hers was indeed a paradigm case for such a measure and to require such an action was compatible with the principle in Chikwamba  UKHL 40, namely that where an application for entry clearance from abroad is likely to be granted and where there would be significant interference with family life by temporary removal of the applicant for entry clearance, then the weight to be accorded to the requirements of obtaining entry clearance – as an measure of immigration control – is to be reduced, especially in cases involving children. But applying section 117B(6) to JG’s case produced a different conclusion and:
87. Thus, if the respondent’s construction of section 117B(6) were correct, the appellant’s appeal would fall to be dismissed. Requiring the appellant to make an entry clearance application from abroad (which, notwithstanding her immigration history, is likely to be successful) would not be a disproportionate interference with her article 8 rights or those of her children and her partner.
88. For the reasons we have given, however, we are satisfied that Mr Bazini’s construction of section 117B(6) is, in fact, the correct one. Even though, on our findings, it is unlikely that the children would leave the UK, if the appellant were removed, on the hypothesis (which section 117B(6)(b) demands) that they are expected to leave, we must determine whether it would be reasonable for them to do so.
89. Section 117B(6) concerns an assessment of the reasonableness of a child’s leaving the United Kingdom. It does not expressly demand an assessment of reasonableness by reference to the length of time the child is expected to be outside the UK. In the light of paragraphs 18 and 19 of KO (Nigeria), the child’s destination and future are to be assumed to be with the person who is being removed.
The tribunal asked the question whether in circumstances where the authorities demand that the person facing removal can be expected to make an application for entry clearance, does this require the tribunal’s assessment to take this into account, in determining whether it would be reasonable for the child to leave? No doubt, there may be a real difference between a child living outside the UK for a few months as opposed to an indefinite period abroad. It was not necessary to resolve the question “in its stark form” and it would be “to stand” the Chikwamba principle “on its head” to demand that the children should follow the mother to Turkey to apply for entry clearance.
The children in the present case were well settled at school. Indeed, the daughter was excelling academically. They are being raised in a Roman Catholic academic and social environment. Despite the mother’s poor credibility rating, the Upper Tribunal was satisfied that the children were not Turkish speakers and had no idea of the experience of living in Turkey. Overall, the presidential panel, said:
95. We therefore conclude that, on the facts of this case, it would not be reasonable to expect the appellant’s children to leave the UK, in the event of her removal. This means the appellant’s appeal succeeds. It does so because Parliament has stated, in terms, that the public interest does not require her removal, in these circumstances. It does so despite the fact that, absent section 117B(6), the appellant’s removal would be proportionate in terms of article 8 of the ECHR.
As noted at the outset, Underhill, Singh and King LJJ returned to the issues still plaguing section 117B(6) in AB (Jamaica) and while they concurred with the interpretation given by the Upper Tribunal to section 117B(6)(b) in JG’s case, the court did not agree with what was said by Lane J and UTJ Gill in their reasoning, particularly at paragraph 25, regarding the meaning of the concept “to expect”.
The difference in opinion makes no material difference to the final interpretation but the Court of Appeal found that the concept of “to expect” something can be ambiguous. It can be, as the Upper Tribunal had thought, simply a prediction of a future event. On the other hand, “it can have a more normative aspect [force]” as shown by the sense in which Admiral Nelson famously used it at Trafalgar by declaring that England expects every man to do his duty.
Singh LJ also gave UTJ Plimmer a nice little pat on the back for her sharp treatment of the issues in SR (Pakistan) when she stated that section 117B(6)(b) cannot be set aside and does not merely pose a hypothetical question. Since it is a statutory question it cannot be “ignored or glossed over” and the provision “is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be expected to leave the UK?” And so with that in mind Singh LJ held without hesitation:
75. I respectfully agree. It is clear, in my view, that the question which the statute requires to be addressed is a single question: is it reasonable to expect the child to leave the UK? It does not consist of two questions, as suggested by the Secretary of State. If the answer to the single question is obvious, because it is common ground that the child will not be expected to leave the UK, that does not mean that the question does not have to be asked; it merely means that the answer to the question is: No.
In the cases of RA (s.117C: “unduly harsh”; offence: seriousness) Iraq  UKUT 123 (IAC) and MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 122 (IAC), the Upper Tribunal also returned to the thorny theme of foreign criminality and the construction of section 117C in light of KO (Nigeria). Notably, section 117C concerns article 8 and additional considerations in cases involving foreign criminals and I hope to post on these interesting developments soon.
Overall, whatever misdemeanours may be ascribed to the presidential panel in overlooking Lord Nelson’s conception of “to expect”, the outcome in JG’s case makes it clear that Lane J is totally unafraid of giving decisions against the UK government in highly controversial cases.