In relation to the “new” Rules introduced in July 2012 and the new statutory framework set out in Part 5A of the 2002 Act, giving the leading judgement, Lord Carnwath in the Supreme Court, in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent)  UKSC 53 (24 October 2018) had the following stinging criticisms to impart:
“……….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. Rather than attempt a detailed analysis of all these impressive but conflicting judgments, I hope I will be forgiven for attempting a simpler and more direct approach. I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the “best interests” of children, including the principle that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (see Zoumbas v Secretary of State for the Home Department  UKSC 74,  1 WLR 3690, para 10 per Lord Hodge)”.
The appeals before the Supreme Court were observed to have taken 4years to reach that Court. Having regard to the overall Supreme Court judgement, it seems that a lot of judicial ink may have been unnecessarily expended in the Upper Tribunal on matters where an application of “judicial comity” could have been applied as, “uncertainty at that level could have been resolved at an early stage by selecting a suitable case…….”.
In relation to the Court of Appeal, following on from Lord Carnwath’s remarks, the “leapfrog” procedure applicable to appeals from the Upper Tribunal to the Supreme Court could have been employed, to be resolved at Court of Appeal level. The appeals were noted to raise a relatively narrow point of construction of a new set of provisions intended to clarify a contentious area of law applicable to many cases before the Secretary of State and the tribunals and therefore the application of the “leapfrog” procedure could have resulted in speedy resolution in the public interest.
In summary therefore, the Court of Appeal should have recognised much sooner that it required “senior” judicial assistance and input, and rather than dish out case after case on these new provisions, should have grasped an earlier opportunity to push through the relevant appeals upwards to the Supreme Court.
Focusing on the considerations, the appeals in KO(Nigeria) raised the following issues: whether in determining whether it is “reasonable to expect” a child to leave the UK with a parent (under section 117B(6), or whether the effect of deportation of the parent on the child would be “unduly harsh” (under section 117C(5), is the tribunal concerned only with the position of the child and not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal. The Secretary of State argued that both provisions require a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with removal or deportation of the parent.
Part 5A of the 2002 Act and Section 117B(6) – unreasonableness test:
The relevant statutory regime is contained in Part 5A of the Nationality, Immigration and Asylum Act 2002. Section 117A of the 2002 Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under article 8, and would so be unlawful under section 6 of the Human Rights Act 1998.
Section 117B, applicable in all cases, lists a series of relevant considerations, the most relevant being Section 117B(6) which states:
“(6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –
(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom.”
A “qualifying child” is defined for this purpose as a person under the age of 18 who is a British citizen, or “(b) has lived in the United Kingdom for a continuous period of seven years or more” (section 117D(1)).
Part 5A of the 2002 Act and Section 117C(5)- Unduly harsh test:
Section 117C sets out “additional considerations in cases involving foreign criminals”. For this purpose a “foreign criminal” is defined by section 117D(2) as a person, who not a British citizen, and who has been convicted of an offence in the United Kingdom, if it attracted a sentence of at least 12 months, or the offence caused “serious harm” or he is a “persistent offender”.
Section 117( C) states:
“(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.
(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”.
Paragraph Section 117C(5)) is broken down into two parts in Paragraph 399 of the Immigration Rules, so that that paragraph applies where:
“(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported.”
Immigration Rules Private Life- Paragraph 276ADE(1)(iv) 7Year Rule -Unreasonableness test:
The Immigration Rules provide:
“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK;
SUPREME COURT CONSIDERATIONS AND CONCLUSIONS
7Year Rule and Paragraph 117B(6)- no requirement to consider the criminality or misconduct of a parent as a balancing factor:
Paragraph 276ADE(1)(iv) 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. In Lord Carnwath’s view it was impossible to read it as importing such a requirement by implication.
Section 117B(6) incorporated the substance of the rule 276AD(1)E(iv) without material change, but this time in the context of the right of the parent to remain. The question was what is “reasonable” for the child. As Elias LJ said in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber)  EWCA Civ 705,  1 WLR 5093, paragraph 36, there was nothing in the subsection to import a reference to the conduct of the parent.
Section 117B sets out a number of factors relating to those seeking leave to enter or remain, but criminality is not one of them. Subsection 117B(6) is on its face free-standing, the only qualification being that the person relying on it is not liable to deportation.
The list of relevant factors set out in the IDI guidance referred to at paragraph 10 of the judgment in KO(Nigeria) seemed wholly appropriate and sound in law, in the context of section 117B(6) as of paragraph 276ADE(1)(iv).
On the other hand, as the IDI guidance acknowledged, it seemed inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain.
Section 117C and the unduly harsh test:
In relation to section 117C, on its face, Exception 2 raises a factual issue seen from the point of view of the partner or child: would the effect of C’s deportation be “unduly harsh”? Although the language is less precise than that of exception 1, there is nothing to suggest that the word “unduly” is intended as a reference back to the issue of relative seriousness. Like exception 1, and like the test of “reasonableness” under section 117B, exception 2 appears self-contained.
On the other hand the expression “unduly harsh” seemed intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals.
Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context.
“Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. Lord Carnwath stated that one is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department  EWCA Civ 932,  1 WLR 240, paras 55, 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.
Lord Carnwath proceeded to consider earlier caselaw where the Upper Tribunal had reached views simply on the wording of the subsection without any consideration of the relative severity of the particular offences: i.e,MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC),  INLR 563 and MAB ( USA) v Secretary of State for the Home Department  UKUT 435.
The MAB approach was noted to have been summarised as follows: ‘The phrase ‘unduly harsh’ in paragraph 399 of the Rules (and section 117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
The Supreme Court observed however that in KO, Upper Tribunal Judge Southern disagreed with the approach of the Upper Tribunal in MAB. UTJ Southern thought that they had given insufficient weight to the need to give effect to different levels of criminality under section 117C(2). The Supreme Court noted that the same emphasis on section 117C(2) was noted to be at the heart of the key passage of the judgment of Laws LJ in MM (Uganda) v Secretary of State for the Home Department  EWCA Civ 617,  Imm AR 954 in holding that MAB was wrongly decided. Laws LJ concluded that MAB was wrongly decided and that the expression “unduly harsh” in section 117C(5) and in the rules, “requires regard to be had to all the circumstances including the criminal’s immigration and criminal history” (para 26).
Whilst the Supreme Court observed that Laws LJ’s approach had the advantage of giving full weight to the emphasis on relative seriousness in section 117C(2), however, on closer examination of the language of the two exceptions, and of the relationship of the section with section 117B, Lord Carnwath took a different view in KO(Nigeria). He stated that once one accepts, that the issue of “reasonableness” under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2).
It was also difficult to reconcile the approach of Judge Southern or Laws LJ with the purpose of reducing the scope for judicial evaluation. The examples given by Judge Southern illustrated the point. On his view, 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. Lord Carnwatch considered that quite apart from the difficulty of reaching a rational judicial conclusion on such a question, it seemed in direct conflict with the Zoumbas principle that the child should not be held responsible for the conduct of the parent.
The Supreme Court also stated that when one comes to the actual decision of Judge Southern in KO, it was not clear that his approach was materially different from that of the President in MK or indeed the tribunal in MAB. He had adopted with one qualification the guidance in MAB as to the meaning of “unduly harsh” test: “The consequences for an individual will be ‘harsh’ if they are ‘severe’ or ‘bleak’ and they will be ‘unduly’ so if they are ‘inordinately’ or ‘excessively’ harsh taking into account all of the circumstances of the individual’……….” (para 26).
Revocation of deportation order and unduly harsh test:
In relation to IT (Jamaica) v Secretary of State for the Home Department  EWCA Civ 932,  1 WLR 240, IT was considered to be a “foreign criminal” by reason of his conviction on four counts of supplying class A drugs, for which he was sentenced to imprisonment for 42 months. He had applied to revoke his deportation order.
Although this was a case about revocation of a previous deportation, rather than deportation as such, Arden J in the Court of Appeal noted that it was “effectively common ground” that section 117C applied so that the deportation order could only be revoked if its retention was determined to be “unduly harsh”; the dispute was as to “the weight to be given in that determination to the public interest in deporting foreign criminals who have committed serious offences” (para 2). By that time MM (Uganda) had been decided. Following the approach in that case, she said: “the public interest must be brought into account. Therefore, the court must know what that public interest is in any particular circumstance in order to give appropriate weight to it”.
It was submitted on IT’s behalf that Arden LJ’s reasoning was open to the same criticisms as the decision in MM (Uganda) on which it relied. Counsel for IT criticised the court’s introduction of a “compelling reasons” test which is not found in the relevant sub-section. Lord Carnwath stated that he agreed that for that reason at least the Court of Appeal’s reasoning could not stand. The FTT could not be criticised for not applying a test which was not in the relevant provision. For the reasons Lord Carnwath had given in his judgement, it was wrong to proceed on the basis that section 117C(2) required the “nature of the offending” to be taken into account.
It was also noted that the decisions of both tribunals in IT were made before the guidance given in MK and later cases as to the high hurdle set by the “unduly harsh” test. It was considered it may be that with the benefit of that guidance they would have assessed the facts in a different way, however Lord Carnwath did not consider that the decisions could be challenged for that reason alone.
The Supreme Court dismissed the appeal in IT and confirmed the order of the Court of Appeal for remittal to the Upper Tribunal.
Parental misconduct and Section 117B(6):
In NS, the Supreme Court noted that Counsel supported the other appellants in their challenge to the reasoning of MM (Uganda). It was submitted that it was even clearer in the context of section 117B that parental misconduct is to be disregarded.
Lord Carnwath accepted that UTJ Perkins’ final conclusion was arguably open to the interpretation that the “outrageousness” of the parents’ conduct was somehow relevant to the conclusion under section 117B(6). However, read in its full context did not think he erred in that respect. UTJ Perkins had correctly directed himself as to the wording of the subsection. The parents’ conduct was relevant in that it meant that they had to leave the country. It was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain here. But in a context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the judge to suggest that that would be other than reasonable.
The Supreme Court decision in KO(Nigeria) makes dry and at times rather complex reading, however can we now say with total confidence that KO in the Upper Tribunal and MM(Uganda), a Court of Appeal decision, have both been wholly overturned by the Supreme Court, to be confined to the legal dustbin?
If so what happens to all those cases where the wrong approach was being applied for nearly 3years?
Conversely, can one now go as far as saying that the full MAB and MK approach is what First Tier and Upper Tribunal Judges should now be following in deportation appeals on applying the unduly harsh test?
Matters seem well and good so far in particular for those seeking to rely on the 7year rule and Section 117B(6), however for those subject to deportation, it is to be noted that there is still a high hurdle set by the “unduly harsh” test.