The UK Supreme Court has given judgment in the landmark child rights case of KO (Nigeria) v Secretary of State for the Home Department  UKSC 53. In this post, I provide an overview of prior decisions and analyse the court’s judgment in some detail. To skip to the key points, use the contents box below.
The road to KO has been paved by a over decade of legislative changes aimed at bringing domestic law into line with the UK’s international law obligations, and the welter of cases (and confusion) that followed.
At the international level, the UN Convention on the Rights of the Child 1989 (‘UNCRC’), provides in Article 3 that:
1. In all actions concerning children… the best interests of the child shall be a primary consideration.
When the UK first ratified the UNCRC in 1991, it entered a reservation regarding its immigration functions. By 2008, the UK had dropped this reservation. Thus section 55 of the Borders, Citizenship and Immigration Act 2009 (‘BCIA 2009’) placed the government under a duty to safeguard and promote the welfare of children when operating immigration controls (also known as chilren’s ‘best interests’).
Previous Supreme Court cases on the best interests of children
In line with the above, the courts have held that in all immigration decisions that affect children, the child’s best interests must be assessed as ‘a primary consideration‘ that carries substantial weight, but that may be nevertheless outweighed by other compelling factors (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 at § 33 and 44).
In ZH, Lady Hale got to the heart of the matter:
44 There is an obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration. The proper approach… is, having taken this as the starting point, to assess whether their best interests are outweighed by the strength of any other considerations…
Importantly, ZH (Tanzania) held that when conducting the best interests assessment, children should not be held responsible for the actions of their parents (§ 44).
Although later Supreme Court cases asknowledged that factors such as nationality would be relevant to the strength of the child’s human rights claim, the principles from ZH (Tanzania) were re-affirmed in Zoumbas v Secretary of State for the Home Department  UKSC 74 at § 10.
The Court of Appeal’s approach
The Court of Appeal developed a more restrictive branch of case law.
In EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874, the Court of Appeal applied ZH (Tanzania) and held that the best interests of children should be determined by reference to the child alone, without reference to the immigration history or status of either parent in non-criminal cases (§ 34, per Lord Justice Clarke).
The real test in cases where a child’s parents have no right to remain is, according to EV (Philippines), whether it is reasonable to expect the child to follow the parent to the country of origin (§ 58, per Lord Justice Lewison). The ‘reasonableness’ test was a wide one, taking into account all of the circumstances of the case, including the conduct of the child’s parents:
The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully. (§ 37)
Parliament’s new human rights framework
On 28 July 2014, Parliament installed a new human rights framework in Part 5A of the Nationality Immigration and Asylum Act 2002 (as amended). This was an attempt to set tidy things up through a statutory code that applied to immigration appeals that raised the right to family or private life under Article 8 of the European Convention. The idea was that Judges should adopt a more consistent approach in this area. It has not been a roaring success.
Over the next 4 years, as the Upper Tribunal tied itself up in ever more artisanal-legal knots over the meaning of this framework, the Court of Appeal maintained the restrictive approach sketched out in EV (Philippines).
So in MM (Uganda) & Anor v Secretary of State for the Home Department  EWCA Civ 617, a deportation case concerning a ‘foreign criminal’, Lord Justice Laws held that when considering the harshness of the removal on the deportee’s children and/or partner, decision-makers must take into account the seriousness of the deportee’s offending and immigration history along with any other relevant circumstances (§ 24). That is because Part 5A, when read as a whole, emphasises the important public interest in deporting foreign criminals (§§ 23 and 24).
MM was applied by the Court of Appeal in the non-criminal case of MA (Pakistan) and others v Secretary of State for the Home Department  EWCA Civ 705. On the plus-side, MA held that the fact that the child has been in the UK for 7 years should be given significant weight by the Tribunal, and that leave should be granted unless there are ‘powerful reasons to the contrary’ (§ 49). However, Lord Justice Elias giving the lead judgment, found that the conduct and immigration history of a child’s parents were relevant factors when considering whether or not it would be reasonable to expect a child to leave the UK (§ 45).
None of these cases have attempted to resolve the apparent conflict between the case law on the best interests of children and the approach that has been adopted by the Court of Appeal court since EV (Philippines).
This is a judgment in 4 consolidated appeals. It considers two inter-related legal issues, namely:
- What is the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under the test in 276ADE(1)(iv) of the Immigration Rules (also known as the ‘7 year rule’);
- Whether a court or tribunal, when considering the public interest in deportation, should take into account parental misconduct when assessing whether the effect of deportation on a child (with whom the foreign criminal has a parental relationship) is ‘unduly harsh‘ under s.117C(5) of the Nationality Immigration and Asylum Act 2002 / para 399 of the Immigration Rules.
Lord Carnwath gives the unanimous judgment of the 5 judge panel, in the court’s first decision on the operation of the human rights framework in Part 5A of the 2002 Act.
The appellants argued that the conduct of parents should not be considered when assessing whether it is reasonable for a child to be required to leave the UK or (in criminal cases) whether deportation of their parent was ‘unduly harsh’. The government argued that the framework required Judges to balance the impact on the child against the public interest in removing the parent.
The court described the purpose of Part 5A as a further attempt to tidy up the factors that Judges must consider when Article 8 is relied upon in immigration cases (§ 14). It notes however that that purpose rather backfired:
It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges.
The 7-year rule
On its face, the 7-year rule contained in paragraph 276ADE(1)(iv) which settled children can rely upon does not require consideration of parental misconduct. Section 117B(6), which parents of such children may rely upon, also does not refer to parental misconduct. Both tests focus on what is reasonable for the child.
However, inevitably, there must be consideration of whether the parents are expected to be located, ie. whether or not they are unlawfully present in the UK (§ 18).
The correct approach is therefore to ask, in the context of the particular case:
- Whether the parent/s have lawful immigration status; and
- In any event, is it unreasonable to require the child to leave the UK with the departing parent/s?
Lord Carnwath approves of the approach in EV (Philippines), and disagrees with Lord Justice Elias’ comments to the contrary in MA (Pakistan) at § 40.
Settled children in criminal cases
This part of the judgment concerns the following provisions in section 117C of the 2002 Act, set out below for convenience:
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where –
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
The court is critical of these disjointed provisions (see § 20):
…the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect.
The exception to the public interest in deportation of ‘foreign criminals’ that applies to settled children requires consideration of whether the effect of deportation is ‘unduly harsh’ on a settled child. The court concludes that Exception 2 is self-contained. It does not require decision-makers to take into account the relative severity of the parent’s offence as section 117C(2) might suggest (§ 23). The length of sentence is only relevant in deteriming whether Exceptions 1 and/or 2 apply.
The court overrules the approach of Lord Justice Laws in MM (Uganda). In the same way that the ‘reasonableness’ test in section 117B(6) is focused on the child, so is the ‘unduly harsh’ test under section 117C(5). If the MM (Uganda) approach were followed then:
…the tribunal is asked to decide whether consequences which are deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug-dealer. Quite apart from the difficulty of reaching a rational judicial conclusion on such a question, it seems to me in direct conflict with the Zoumbas principle that the child should not be held responsible for the conduct of the parent.
The individual appeals were dismissed following discussion of the principles laid out above. Lastly, the court observed that it would have been preferable for suitable appeals to ‘leapfrog’ from the Upper Tribunal to the Court of Appeal in order to avoid protracted disagreements at both levels.
What does it all mean?
This is a nuanced decision which partly allows parental misconduct such as immigration history to be considered (under the 7-year rule), but excludes parental misconduct from the framework of exceptions to deportation. That may seem counter-intuitive but it is based upon the court’s careful reading of the language of the rules and the statute.
It is welcome to see the court re-affirm the importance of the principle that children should not be held responsible for the conduct of their parents, but in some cases, my view is that KO (Nigeria) may have just that effect and provides little re-assurance for those parents who have over-stayed or otherwise ceased to have visas.
There remains an unresolved tension at the heart of these cases, as Lady Hale first identified in ZH.
It may not have been the court’s intention, but I can see some confusion arising from KO (Nigeria) given that the two tests in non-criminal and criminal cases pull in very different directions. I hope my attempt to extract the key points in this post offers some clarity.