“Best interests” in the balance

In KO (Nigeria) [2018] UKSC 53, the Supreme Court provided some long-awaited guidance for decision makers when assessing part 5A of the Nationality, Immigration and Asylum Act 2002 (ss 117A-117C), as well as para 276ADE(1)(iv) of the Immigration Rules. These provisions come into play in cases concerning the best interests of a child (British citizen or who has lived continuously in the UK for at least seven years), where that child, or their parents, are liable to removal or deportation from the UK. 

In assessing the impact on the child, different tests are applied in these provisions. For s 117B and para 276ADE(1)(iv), the test is one of “reasonableness”, while for s 117C (specifically for cases where the parent is liable to deportation) it is one of “undue harshness”. 

Pre-KO (Nigeria), it had become common practice for the Secretary of State to assert, and for the relevant court or tribunal to accept, that an assessment of what was “reasonable” or “unduly harsh” for the child ought to be balanced against the conduct or criminality of the parents – an approach which appeared to be in conflict with Lord Hodge’s assessment in Zoumbas v Secretary of State for the Home Department [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”.

Conduct: is it relevant?

The key question was therefore whether the provisions are self-contained; in other words, are the tests directly solely at the impact on the child, or does this involve a balancing exercise against the conduct of the parent(s)?

The Supreme Court judgment, given by Lord Carnwath, was firm. In relation to para 276ADE(1)(iv), he said: “This paragraph is directed solely to the position of the child. Unlike its predecessor DP5/96 it contains no requirement to consider the criminality or misconduct of a parent as a balancing factor. It is impossible in my view to read it as importing such a requirement by implication.”

Given the similarity of this provision with s 117B(6) of the 2002 Act, the court formed the same view: “The question again is what is ‘reasonable’ for the child… Section 117B sets out a number of factors relating to those seeking leave to enter or remain, but criminality is not one of them.”

One important caveat was the court’s view that, while the conduct of the parent is not directly relevant, this: “may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave”.

With respect to s 117C, the court only dealt with one particular exception it contains, namely where deportation would be “unduly harsh” on the partner or child. While acknowledging that the test is a stricter one than “reasonableness”, Lord Carnwath reached the same conclusion: the exception was directed solely towards the position of the child, not to be balanced against the relative seriousness of the offence.

Differing interpretations

The complexity of the judgment, in particular the caveat, has already proved difficult for the courts. Recently, the Inner House in SA v Secretary of State for the Home Department [2018] CSIH 71, which had awaited the judgment in KO (Nigeria), was considering the dismissal of a judicial review by the Outer House, raised by a Bangladeshi family whose eldest child had been born in the UK and resided continuously for seven years following birth, and who had been refused permission to appeal to the Upper Tribunal. 

The Lord Ordinary considered that if s 117B(6) was intended to be a standalone provision, and the assessment directed solely at the question of whether it was reasonable to expect the child to leave, Parliament would have made such an intention clear. Further, the conduct/immigration status of the parents was relevant as concerned the context of the assessment: what are the reasons why the child would be expected to leave the UK? 

On the face of it, that would appear to be inconsistent with KO (Nigeria). However, the Inner House held that, because of Lord Carnwath’s caveat, the Outer House was entitled to come to that conclusion. 

In a more positive decision, the Upper Tribunal in JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC) held that, even where it was unlikely that the child would be removed if one of their parents were to be, for example, because their other parent was British, the court or tribunal was still required to “hypothesise” and assess whether it would be “reasonable to expect the child to do so”. Of particular relevance was the fact that, in cases where the parent of a British child was liable to deportation, the court or tribunal was required to assess the question of “undue harshness” from two perspectives: first, for the child to be forced to go to the country to which the parent was deported; and secondly, for the child to require to remain in the UK without said parent. 

Furthermore, in direct contrast to the Inner House in SA, the court in JG appeared to indicate that in assessing “reasonableness” under s 117B(6), it does not require to have regard to the parents’ immigration history (see para 40), despite the conclusion of the Supreme Court that such history is indirectly relevant, in terms of context.

What seems clear is that there remains the potential for significantly conflicting judgments, dependent on interpretations of KO (Nigeria). In any event, the recent case law makes for a complex balancing exercise for decision-makers. Given the number of judgments likely to have been stayed behind KO (Nigeria) and the frequency of such cases, more judgments of this nature will undoubtedly follow.