7 Year Children Rule: Court of Appeal Clarifies the Correct Approach to the Reasonableness Test
alicemuzira
It has taken all of 3years and 7months for there to be clarification from the higher Courts as regards the correct approach to the reasonableness test in Paragraph 276ADE(1)(iv) of the Immigration Rules. The Court of Appeal’s judgment on the issue in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705, makes very interesting reading.
Paragraph 276 ADE of the Rules was introduced with effect from 9 July 2012 and amended by HC532, with effect from 28 July 2014. Paragraph 276 ADE(1) (iv) when first introduced, from 9 July 2012, enunciated a rule which provided that the claims of children for leave to remain in the United Kingdom would succeed under the private life rubric of Article 8 ECHR if they could demonstrate a minimum of seven years continuous residence. However, since 13 December 2012, in applications for leave to remain based on Article 8 private life, it has not been sufficient for a child applicant to have accumulated seven years continuous residence in the United Kingdom. Rather, the applicant has also had to demonstrate that he or she could not reasonably be expected to leave the United Kingdom.
Section 117B(6) of the 2002 Act provides that in the case of a person who is not liable to deportation, the public interest does not require the person’s removal where the person has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the United Kingdom.
The critical issue in MA (Pakistan)cases, was how the court should approach the question of reasonableness. What factors is a court or tribunal entitled to take into account when applying the reasonableness test?
The Court of Appeal grappled with the question of whether to apply the narrow construction to the reasonableness test, favoured by the appellants or the wider construction to the reasonableness test favoured by the Secretary of State. The narrow approach advocated that the issue of whether when considering whether it is unreasonable to expect the child to leave the UK, the focus should be solely on the position of the child. The wider approach was to the effect that the application of the reasonableness test requires the judge to have regard to the wider public interests, and thereby requires consideration of the conduct, immigration history and status of the parents. It had been submitted on behalf of the Secretary of State that the consequence of the appellants’ approach would be to allow many applicant parents who have unjustifiably and unlawfully stayed in the UK to remain here by clinging to the coat tails of the child.
The Issue:
The question was how the test of reasonableness should be applied when determining whether or not it is reasonable to remove a child from the UK once he or she has been resident here for seven years.
Applicable Provisions:
Paragraph 276ADE(1)(iv) of the Immigration Rules
Section 117B(6) of the Nationality, Immigration and Asylum Act 2002
Naidike v Attorney General of Trinidad and Tobago[2004] UKPC 49
Court of Appeal’s observations in relation to Paragraph 276ADE(1)(iv) and Section 117B(6) of the 2002 Act:
As regards paragraph 276ADE(1)(iv) of the Immigration Rules, the application for leave is brought under the rule by the child. In relation to section 117B(6) of the 2002 Act, it is a claim brought outside the Immigration Rules by a parent under article 8 ECHR. In each case persons exercising a parental role (and other siblings) may be entitled to stay with the child in the UK in circumstances where they would not qualify for leave in their own right, independently of their status as parents. In effect they may be able to piggy back on the rights of the child. In each case the child in question must have been living in the UK for more than seven years in order for the provisions to bite.
Paragraph 276ADE(iv) and Section 117B(6) of the 2002 Act are similarly framed: both require seven years’ residence and in both a critical question is whether it would be unreasonable for the child to be expected to leave the UK.
Further, the concept of seven years’ residence may not be calculated in precisely the same way in the two provisions. Paragraph 276ADE(1) states in terms that the period must be assessed as at the date of the application. It was noted however that the Secretary of State conceded that as a result of section 85(4) of the 2002 Act, the relevant date for the purpose of section 117B is the later date when the court is making its determination. The Court of Appeal acted on the assumption that this is correct.
In addition, only the child can apply under Paragraph 276ADE (iv), whereas Section 117B is concerned with article 8 applications under which both the child and the parents can apply.
Paragraph 276ADE is concerned with applications made on the basis of private life, whereas claims under article 8 may rely on both private and family life.
In the Court’s judgement, a legitimate assumption that the question whether it is reasonable to expect the child to leave should be approached in the same way in each context, and it was noted that no party sought to contend otherwise.
The Court of Appeal also observed that Section 117A states in terms that section 117B applies to courts and tribunals. It was considered curious that the Secretary of State was not in terms bound by these rules but the Court considered that it would be bizarre for her to depart from Parliament’s view of the public interest as reflected in the legislation, and if she were to do so in a manner prejudicial to the individual, it would simply invite appeals.
In the Court’s judgement, there could be no doubt that section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal.
In the Court’s judgment, therefore, the only questions which courts and tribunals need to ask when applying section 117B(6) are the following:
Is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C.
Does the applicant have a genuine and subsisting parental relationship with the child?
Is the child a qualifying child as defined in section 117D?
Is it unreasonable to expect the child to leave the United Kingdom?
If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that article 8 is infringed.
The Reasonableness Test- The Narrow Approach versus The Wider Approach:
The Court noted the narrow construction approach advanced in relation to the reasonableness test on behalf of the appellants ie that when considering whether it is reasonable or not to remove the child, the court must focus only on the position of the child and that the conduct and immigration history of the parents, which would be relevant if the wider public interest considerations had to be weighed in the balance, were immaterial.
The wider construction approach of the Secretary of State meant that the stronger the public interest in removing the parents, the more reasonable it will be to expect the child to leave. It was argued on the Secretary of State’s behalf that the Appellant’s approach was misconceived and would lead to a much more generous approach to these applications than Parliament could have intended. The focus was not simply on the child but must embrace all aspects of the public interest. It was argued that in substance the approach envisaged in section 117B(6) is not materially different to that which a court will adopt in any other article 8 exercise. The decision maker must ask whether, paying proper regard to the best interests of the child and all other relevant considerations bearing upon the public interest, including the conduct and immigration history of the applicant parent or parents, it is not reasonable to expect the child to leave. The fact that the child has been resident for seven years will be a factor which must be given significant weight in the balancing exercise, but it does not otherwise modify or distort the usual article 8 proportionality assessment.
The approach the Court of Appeal felt compelled to apply:
The approach applied by the Court of Appeal was by reference to the very recent decision of the Court of Appeal in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450 where the court came down firmly in favour of the approach urged by the Secretary of State. The Court of Appeal in MA (Pakistan)stated that they did not consider that they ought to depart from it.
MM (Uganda) raised the question how the court should approach the meaning of “unduly harsh” in the context of section 117C of the 2002 Act. The Court in MM(Uganda) found that the wider public interest was engaged. Laws LJ held in that case that the court should have regard to all the circumstances, and these included the applicant’s immigration and criminal history.
In the Court’s judgment in, MA (Pakistan) if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6). The Court recognised that the provisions in section 117C are directed towards the particular considerations which have to be borne in mind in the case of foreign criminals, and it was true that the court placed some weight on section 117C(2) which states that the more serious the offence, the greater is the interest in deportation of the prisoner. It was however considered that the critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the “unduly harsh” criterion. It seemed to the Court in MA (Pakistan) that it must be equally so with respect to the reasonableness criterion in section 117B(6). The Court of Appeal indicated an intention to approach the appeals on the basis that the Secretary of State’s submission on this point was correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.
Seven years residence still of significant weight in proportionality exercise:
The Court of Appeal however considered that even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. It was noted that the Secretary of State’s published guidance in August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes” expressly stated that once the seven years’ residence requirement is satisfied, there need to be “strong reasons” for refusing leave. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
The Court of Appeal did however make it clear that even if applying the narrow reasonableness test where the focus is on the child alone, it would not follow that leave must be granted whenever the child’s best interests are in favour of remaining. The Court rejected the submission that the best interests assessment automatically resolves the reasonableness question. The Court considered that if Parliament had wanted the child’s best interests to dictate the outcome of the leave application, it would have said so. Even where the child’s best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return.
Applicable caselaw on the wider construction of section 117B(6):EV (Phillipines)
The Court of Appeal considered that although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles in EV (Philippines) v Secretary of State for the Home Department[2014] EWCA Civ 874, would apply in such a case. In was noted that in EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paragraphs 34-37):
The Court in MA (Pakistan) however stated that, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.
The Seven principles in Zoumbas reiterated:
It was noted that the decision in ZH and subsequent decisions of the Supreme Court raising best interests considerations were considered by the Supreme Court in Zoumbas v Secretary of State for the Home Department[2013] UKSC 74; [2013] 1 WLR 3690. Lord Hodge, with whose judgment Lady Hale and Lords Kerr, Reed and Toulson agreed, approved the seven principles which need to be borne in mind when considering the interests of the child in the context of an Article 8 evaluation (paragraph 10).
The seventh principle provides, “(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.” The Court in MA (Pakistan) noted that paragraph (7) justifies the observation of Christopher Clarke LJ in EV (Philippines) at paragraph 33 that “the best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent.” Accordingly, when making that assessment, it would be inappropriate to treat the child as having a precarious status merely because that was true of the parents.
Other Issues:
There were noted to be three issues which arose in the cases relating to the best interests of the children.
It had been submitted on the Appellant’s behalf that once the best interests have been determined, that necessarily resolves the reasonableness question. For reasons the Court gave, this submission was rejected. There was considered to be nothing intrinsically illogical in the notion that whilst the child’s best interests are for him or her to stay, it is not unreasonable to expect him or her to go. That is so even if the reasonableness test should be applied so as to exclude public interest considerations bearing upon the parents.
Another issue which arose was whether there was any particular order in which a court has to approach the proportionality exercise where the best interests of the child are in issue. It was put forward in effect that the court has first to carry out a careful assessment of the best interests of the child and then decide whether any other public interests in play have the effect of displacing it. The Court rejected the two staged approach. There is no obligation for a court to approach the matter in such a formal way. It could not be said that courts and tribunals are mandated to look at matters in any particular way such that it is an error of law for them to fail to do so. No doubt it will usually be sensible to start with child’s best interests but ultimately it does not matter how the balancing exercise is conducted providing that the child’s best interests are treated as a primary consideration. It is vital for the court to have made a full and careful assessment of the best interests of the child before any balancing exercise can be undertaken. If that is not done there is a danger that those interests will be overridden simply because their full significance has not been appreciated. The court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child’s best interests whatever they might be, with the result that no proper assessment takes place.
Another issue which arose, was where it falls on the court to determine the child’s best interests, what should it do if it does not consider that it has been provided with the necessary information properly to make that assessment? The Court accepted, that whilst a court can normally expect an applicant to provide the information required to enable the court to make the best interests assessment since the onus is on the applicant to prove any breach of section 55, there will be cases where the court will have to make enquiries on its own initiative. It was noted that the Court of Appeal in SS(Nigeria) thought that this was likely to be very rare although it was considered fair to say that Mr Justice McCloskey, drawing on his broad experience in this field, believes that the situation will arise more frequently. It was noted that no doubt the problem is more likely to occur with litigants in person who will not always appreciate what information is required to make good their case. In some circumstances it may become apparent that justice cannot be done without further material being obtained, either by a party or by the court using its case management powers. The Court accepted that it may, albeit very exceptionally, be an error of law for the court to fail to make further enquiries in such cases, and this may involve the need to adjourn the hearing, although in the Court’s view the failure to do so would only be an error of law where the refusal or failure to do so was Wednesbury unreasonable or resulted in unfairness.
Conclusion
The Court of Appeal applied the wider approach to the reasonable test, however it is surprising that they did so by reliance upon the case of MM (Uganda) v Secretary of State for the Home Department[2016] EWCA Civ 450, having acknowledged as they did at paragraph 32 of their judgement that at the time of the hearing in MA (Pakistan) there was no report of the case in MM, merely a brief summary. However, regardless of the reliance upon MM, there was in any case the pre-existing principles set out in the cases of EV (Philippines) v Secretary of State for the Home Department[2014] EWCA Civ 874 and Zoumbas v Secretary of State for the Home Department[2013] 1 WLR 3690 to pick up from.
The Court of Appeal seemed somewhat reluctant to reject the narrow approach without giving it some due balanced considerations. The Court opined at paragraph 36 of their judgement that looking at section 117B(6) free from authority, they would favour the argument of the appellants. It was noted that the focus on paragraph (b) of section 117B(6) is solely on the child and the Court could see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest. It was put forward by the Court of Appeal that in an appropriate case the Secretary of State could render someone liable to deportation, and thereby render him ineligible to rely on this provision, by certifying that his or her presence would not be conducive to the public good.
Perhaps the clue is in paragraph 37 of the Court’s judgment: ie that section 117B(6) in the Court’s view is drafted in an extremely convoluted way to achieve so limited an aim as advocated on behalf of the Secretary of State. It was noted by the Court that the objective could have been achieved much more clearly and succinctly.
Can it be that the Secretary of State may consider amending Section 117B(6) of the 2002 Act and Paragraph 276ADE?
Currently however, in particular from paragraph 45 of the Court’s judgement in MA (Pakistan), there appears merely a rubber stamping of MM (Uganda) v Secretary of State for the Home Department[2016] EWCA Civ 450.
