Category: Recent Case Law


Parents bad behaviour irrelevant to the best interests of children

On 25 October 2018, the UK Supreme Court has handed down judgment referred to as KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53 concerning four linked appeal cases on the best interest of children who themselves or whose parents face removal from the UK.

The judgment considers two inter-connected legal issues. Firstly, the judgement answers 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 ‘7-year’ rule contained in 276ADE(1)(iv) of the Immigration Rules. The ‘7-year’ rule provides that a child will be permitted to remain where the child “has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK” and, on its face, does not require consideration of parental misconduct. In the judgement, Lord Carnwath provides that it is impossible to read this provision as importing a requirement to the criminality or misconduct of the parent. However, he further finds that the immigration status of the parent/s is indirectly relevant to the consideration of whether it is reasonable for a child to leave the UK. Accordingly, as he further elaborates, the correct approach is not to ask is it reasonable for the child to leave the UK but rather is it reasonable to expect the child to follow the parent with no right to remain to the country of origin. When approaching this question, it is important to note that poor immigration history on the part of the parent/s does not justify removal of a child, but rather that, if the rule is read in conjunction with Section 117B of the Nationality, Immigration and Asylum Act 2002 (introduced by the Immigration Act 2014) as Lord Carnwath holds that the same approach applies to section 117B as to paragraph 276ADE(1)(iv), the status of the parent will follow that of the child. Namely, Section 117B, that is very similar to paragraph 276ADE(1)(iv) of the Immigration Rules apart from being directed to the position of the parent not the child and applying only to tribunals and courts and not officials at the Home Office, may answer what happens where it is not reasonable for a child to leave the UK on what paragraph 276ADE(1)(iv) is silent. Section 117B, as directed to the position of the parent not the child, answers that parent must be allowed to stay with the child.

Secondly, the judgment answers 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 Section 117C(5) of the Nationality Immigration and Asylum Act 2002 and Paragraph 399 of the Immigration Rules. One of the court’s conclusions in this regard is that where a foreign criminal has a genuine and subsisting relationship with a qualifying child and the effect of a foreign criminal’s deportation on the child would be unduly harsh, decision-makers shall not take into account the relative severity of the parent’s offence.

To sum it up, the judgment laid down that where under the scheme of immigration law a discretionary assessment of the impact of removal on a child using a “reasonableness” or “undue harshness” test is to be conducted, the conduct of the parent is irrelevant to an assessment of how harsh removal impacted on the child. That is for the reason that conduct of the parent/s will already have been considered in the prescribed procedure and, importantly, a child is not to be blamed for matters for which he or she is not responsible, such as the misconduct of a parent.

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Update on Retained Right of Residence as a former spouse of a qualified person.

On 20th April 2018, the Court of Appeal and the Secretary of State in the case of Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088, clarified the law in relation to Retained Right of Residence. Prior to this case, it was interpreted that non-EEA national must prove that that their EEA national spouse was a qualified person at the time of the divorce decree. However, it is now established that the non-EEA national must only show that their EEA national spouse was a qualified person at the initiation of their divorce proceedings.

The Court of Appeal and the Secretary of State identified that the period between the commencement of divorce proceedings and the grant of divorce decree is quite critical. It was understood that once the termination of marriage is initiated, it will be unreasonable and highly-unlikely for the non-EEA national to obtain evidence of the EEA-national spouse’s employment status as the relationship ties are broken and dissolved. Due to this, the Court of Appeal clarified the interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2016 and Article 13(2) of the Directive 2004/38/EC.

The position of the law in relation to retained right of residence is now clear. A non-EEA national will only be able to obtain retained right of residence once the divorce is granted legally, however the conditions for retaining right of residence will only be based until the commencement of divorce proceedings.

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