Seven Year Rule: Immigration History of Parents is Irrelevant

The Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 (12 April 2019)

As discussed earlier in the analysis of JG (section 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC), the Court of Appeal has held that for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002, the public interest does not require a person’s removal where that person had a genuine and subsisting parental relationship with a child and it would not be reasonable to expect the child to leave the UK. Moreover, Underhill, King and Singh LJJ also took the view that whether there is such a parental relationship depends on the individual circumstances of the case, and it is not a requirement of section 117B(6) for there to be a realistic prospect of the child leaving the UK as a consequence of the person’s removal. Among other things, the judgment is further confirmation that the parent’s immigration history plays no part in the statutory mechanism set out in section 117B(6) because in the present cases Singh LJ concurred with the presidential panel in JG that the provision 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. The present cases concerned the Home Office’s appeals against the UT’s decisions that the public interest did not require AB and AO’s removal pursuant section 117B(6).

AB, a Jamaican national who arrived to the UK in 1999 (or 2002) had a son who was born in the UK and whom he saw around three times a week. He was at first unsuccessful in challenging the decision to refuse him leave to remain in the UK before the FTT. But DUTJ Grimes held that AB’s removal would disproportionately interfere with his rights under article 8 of the ECHR and decided that section 117B(6) applied and so the public interest did not require his removal because, as required by section 117B(6)(a), he had a genuine and subsisting parental relationship with his British son “R” and, as required by section 117B(6)(b), it would not be reasonable to expect the child to leave the UK. AO, a Nigerian national who had come to the UK aged 12, had a British son “I”. However, due to a family court order, AO was only allowed to communicate with I in writing and AO’s leave was curtailed in 2014. The FTT decided that AO’s proposed removal would have interfered with his family life with I sufficiently to engage article 8. FTTJ Pacey held that contact, even in writing, would be less easy if AO was in Nigeria and I would discover that he had moved far away. Moreover, that interference was disproportionate. Subsequently, the UT upheld the decision on the basis that AO satisfied the conditions in section 117B(6).

The Appeal

The Home Office submitted that section 117B(6) did not apply in either case since the condition in section 117B(6)(b) did not arise on the facts and neither AB nor AO’s child was expected to leave the UK. Consequently, there was no need for the tribunals to ask whether it was reasonable to expect them to do so. Specifically in relation to AO, it was also submitted that DUTJ Latter (i) had failed to correct the FTT’s error of law that article 8 was engaged by his proposed removal to Nigeria where he had only limited contact with I, (ii) completely failed to ask the second question posed by Razgar [2004] UKHL 27, and (iii) had furthermore erred by concluding that AO had a “genuine and subsisting parental relationship” with his son I within the meaning of section 117B(6)(a).

The Law

In KO (Nigeria) & Ors [2018] UKSC 53, discussed here, the Supreme Court held that, as amended, the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002 deliberately establish an uncomplicated set of rules. Giving a child-centred judgment Lord Carnwath held that “section 117B(6) is focussed on the position of the child”. In JG the Turkish mother was “both dishonest and unscrupulous, each to a high degree” and she presented a paradigm case of someone who was unworthy of being allowed to remain in the UK and blatantly violated its immigration laws.

Notwithstanding her absolutely atrocious immigration history, the UT allowed her appeal because of the effect of section 117B(6) which did not permit Lane J and UTJ Gill to hold otherwise despite the fact that Lord Carnwath’s “real world” analysis at paragraphs 18 and 19 had not overtly ruled out the possibility of immigration history as counting against the parent. Lane J and UTJ Gill examined the situation through the prism of ZH (Tanzania) [2011] UKSC 4 – which Lord Carnwath did not expressly mention KO (Nigeria) – and they held that despite JG’s high degree of dishonesty and unscrupulousness, her immigration history was totally irrelevant for the purposes of section 117B(6)(b) and therefore they allowed her appeal.

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. Moreover, 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. The children involved in the cases of AB, AO and JG were British citizens but the outcomes in these cases will also apply to qualifying children who have lived in the UK for a continuous period of seven years or more. As Lady Hale pointed out in a recent lecture Nowhere is the universality of human rights more apparent than in relation to the right to respect for private and family life – protected by article 8 of the European Convention.”

The Court of Appeal

Singh LJ, with whom both Underhill and King LJJ concurred, dismissed the government’s appeal on the point that section 117B(6) did not apply in either case because the condition in section 117B(6)(b) did not arise on the facts. On the other hand, the court allowed the government’s appeal on the three grounds tailored for AO. The court’s specific rationale is examined below.

Analysis of section 117B(6)(b)

As a preliminary point, Singh LJ said that it is clear that as formulated the public interest question is tightly confined to the question which arises under article 8(2) only and it corresponds to questions 4 and 5 as set out in paragraph 17 of Razgar by Lord Bingham.

Singh LJ embarked upon his examination of the situation confronting the court by noting that KO (Nigeria) [2018] UKSC 53 produced the effect of freeing the Court of Appeal from the deeply flawed approach of Laws LJ in MM (Uganda) [2016] EWCA Civ 617. Therefore he took the opportunity to endorse Elias LJ’s reasoning at paragraph 36 of MA (Pakistan) & Ors [2016] EWCA Civ 705 where he held that the focus of section 117B(6)(b) is solely on the child and no justification exists for reading the concept of reasonableness to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest.

The government argued that that the condition for section 117B(6)(b) simply did not arise on the facts of these two cases and that there was no question of either of the children being expected to leave the UK. In those circumstances there was no need for the tribunals to ask the question whether it was reasonable to expect them to do so. Rejecting the approach, Singh LJ held that:

61. In my judgment, this submission must be rejected. It founders on the clear wording of the legislation … it requires the court to insert words into the Act which are simply not there … it requires the court to divide the concept of a “qualifying child” into two types. There is simply no warrant in the legislation itself for doing so.

The court agreed with the presidential panel’s decision in JG that as a matter of ordinary language, it is not possible to construe section 117B(6)(b) as applying only where a tribunal found that, on the particular facts, the child in question would be expected to leave the UK if the person concerned was removed. Thus, purely as a matter of statutory interpretation, the panel in JG was quite right to hold that it is not possible to use paragraphs 18 and 19 of KO (Nigeria) to argue otherwise.

Admittedly, this interpretation may result in an undeserving individual remaining in the UK.  However, the result in JG was nonetheless correct because of the fact that Parliament had vouchsafed this outcome and “decided to be more generous than is strictly required by the Human Rights Act 1998.” Indeed, in reality, such generosity was a necessity under the aim of Part 5A of imposing greater consistency in decision-making by courts and tribunals and Elias LJ rightly recognised this state of affairs in paragraph 44 of MA (Pakistan). As the presidential panel had pointed out at paragraph 95 of JG, “absent section 117B(6), the appellant’s removal would be proportionate in terms of article 8 of the ECHR.” Singh LJ approved of this analysis and held:

72. I respectfully agree with the interpretation given by the UT to section 117B(6)(b) in JG.

On the other hand, the court did not agree with one aspect of the reasoning in JG, namely at paragraph 25, regarding the exact meaning of the concept “to expect” something, which the presidential panel had interpreted a thing that is “likely to happen”. Although the difference in opinion makes no material difference to the final interpretation, the Court of Appeal stressed that the concept of “to expect” something can be ambiguous. Indeed, it can be, as the panel 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 added that in enacting section 117B(6), Parliament “meant what it said” and so courts and tribunals must give effect to the provision on its correct statutory interpretation. The parties in the appeal agreed that article 8 must always be respected.

The amendments to the 2002 Act by the 2014 Act did not evince an intention to breach the UK’s ECHR obligations. Indeed, on any view, the strong interpretive obligation in section 3 of the 1998 Act applies to all legislation and Part 5A of the 2002 Act is no different in that regard. Singh LJ  also approved of UTJ Plimmer’s view in SR (subsisting parental relationship – s.117B(6)) Pakistan [2018] UKUT 334 (IAC) 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?” His Lordship therefore dismissed the government’s appeal in AB’s case and held that:

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.

Engagement of article 8

On the issue of whether article 8 was engaged in AO’s case, the Court of Appeal took the view that it had not been reasonably open to the FTT to conclude that there had been an interference with his family life sufficient to engage article 8 because FTTJ Pacey failed to explain the reason behind the conclusion that AO’s communication with I by post would of necessity be less easy if he were living in Nigeria.

Singh LJ was of the view that I becoming aware of AO’s departure from living close by to living in Nigeria was not such an interference with family life as to engage article 8. This was particularly so given that the reason for the limited indirect contact between father and child was to contribute to I’s identity rather than to maintain their relationship.

Second Razgar question

The complaint that the UT completely failed to ask the second question posed by Razgar [2004] UKHL 27 in AO’s case was upheld. It was submitted that the UT simply went from answering the question whether there was family life within the meaning of article 8(1) to considering the “public interest question”, which only arises if one gets to the need for justification in article 8(2). The court did not disagree that, unlike the FTT, the UT fell into the fundamental error that it did not even ask itself the second Razgar question and thus it erred in law.

Genuine and subsisting parental relationship

On the meaning of the expression “genuine and subsisting parental relationship”, Singh LJ rejected the government’s argument that an element of direct parental care is necessary for a person to have a “genuine and subsisting parental relationship” with a child for the purposes of section 117B(6)(a).

In support of the rejected position, reliance was placed in VC (Sri Lanka) [2017] EWCA Civ 1967 and alternatively in the point that the conclusion to which the UT came was one that was not reasonably open to it on the facts before it. The argument was flawed because it was based on the rules in paragraph 399(a) of the Immigration Rules which applied to the different context of the deportation of foreign criminals and contained very different language. Therefore, the court disapproved of UTJ Plimmer’s formula in SR (Pakistan) that the treatment of the words “genuine” and “subsisting” by the court in VC (Sri Lanka) “could simply be transplanted to the context of section 117B(6)(a)”. Overall, Singh LJ held that UTJ Plimmer fell into error at paragraphs 36-37 of her ruling where she decided that the interpretation given to paragraph 399 of the Immigration Rules in VC (Sri Lanka) also applied to interpreting section 117B(6)(a). Thus, rejecting the government’s argument, Singh LJ held that:

98. … In my view, the words used in the Act with which we are now concerned are words of the ordinary English language and no further gloss should be put upon them. Their application will depend on an assessment by the relevant court or tribunal of the facts of the particular case before it. The exercise is a highly fact-sensitive one.

Nevertheless, it was still clearly the case that DUTJ Latter’s conclusion had not been open to him on the facts. In family court proceedings, AO had been granted only very limited indirect contact with his son by post, and only for the purpose of contributing to I’s full understanding of his dual heritage identity and not to maintain the relationship with his father. Therefore, government’s appeal was allowed in relation to AO.

Comment

Ultimately, the outcome in these appeals clarifies yet again that the immigration history of the parent makes no difference whatsoever for the purposes of section 117B(6) and to set the record straight Singh LJ also officially freed the Court of Appeal from the regrettable and deeply flawed approach in MM (Uganda) which made no sense at all and which also represented a colossal act of self-indulgence by Laws LJ who was well known for his pro-government proclivities.

Equally, it is also deeply unsatisfactory that the Home Office is still repetitiously running the same flawed arguments about section 117B(6) nearly three years after the decision in MA (Pakistan) where Elias LJ rejected the idea that the immigration history of the parent impacts the outcome in those cases where there is a genuine and subsisting relationship with a qualifying child. Overall, among other things, the present judgment clarifies that an undeserving parent’s immigration history is irrelevant for the purposes of the seven year rule and hopefully it will lay to rest the longstanding controversy on the intentions of statute and the array of diverging pieces of jurisprudence that it has produced over the years. Observably, it has taken five years and endless litigation just to iron out the basic principles laid down in Part 5A of the 2002 Act.

If anything, the present cases of AB, AO and JG’s earlier case in the UT leave no doubt that if Parliament has decided to be more generous in section 117B(6) than is strictly required by the Human Rights Act 1998, then it is acceptable for undeserving parents to be granted leave to remain in the best interests of their innocent children who are also ensnared in the UK’s intricate immigration system. Nevertheless, it will ultimately be for the Supreme Court to decide whether the decisions in these cases are indeed correct and it is inevitable that these testing immigration matters will require further interpretation from the apex court’s justices yet again in the future.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Cases, Children, Court of Appeal, ECHR, Families, Human Rights Act, Immigration Act 2014, Immigration Rules, Proportionality, Public Interest, Tribunals, UKSC and tagged , , , , , , , . Bookmark the permalink.

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