As the UK Supreme Court’s much anticipated decision in KO (Nigeria) this Wednesday draws near, here’s a quick rundown of some key cases on this issue and some free resources, all from Law, mostly.
Background
KO (Nigeria) will consider wheter parental misconduct (ie. criminal convictions and adverse immigration histories) can be considered when deciding whether settled children should be expected to leave the UK or to be separated from parents who are being removed.
Both the Upper Tribunal and the Court of Appeal have answered ‘yes’ to the above question, although one Lord Justice (Elias) expressed some misgivings. [1]
It seems unlikely to me that the Supreme Court will completely reverse the decisions of the lower judges. However, as Lady Hale once said quotably:
Children can sometimes surprise one.
(§ 37, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4)
Children’s rights cases can be hazardous to predict and I hope to be proven wrong about KO (Nigeria). Either way, the Supreme Court will hopefully provide some much needed further guidance on the tension between the principle that children should not be held responsible for the sins of their parents and the current notion that, when assessing the effect of removal on a settled child, parental misconduct is a relevant factor in the balance.
Case reports
When is it reasonable to remove a settled child from the UK?
How to apply UK Parliament’s new(ish) human rights framework
No such thing as an average case where children are concerned, says Court of Appeal
Free online learning resources
Disrupting the Rules: child rights in the UK Supreme Court by Ben Amunwa – I enjoyed delivering this paper at a seminar in March 2017, reviewing trends in the Supreme Court and flagging some areas of future litigation potential, some of which are now being litigated.
Case table on Parliament’s human rights framework for family and private life cases – This case law table charts the first 2 years of Parliament’s new provisions on family life (including the rule on settled children).
[1] See MA (Pakistan) and others v Secretary of State for the Home Department [2016] EWCA Civ 705 at § 17.
