Court of Appeal endorses Upper Tribunal in JG on interpretation of section 117B(6)(b): Reasonable to expect a child to leave the UK and parental relationship
“a genuine and subsisting parental relationship with a qualifying child” in section 117B(6)(a), and
“it would not be reasonable to expect the child to leave the United Kingdom” in section 117B(6)(b)
The Court of Appeal made it clear that the,“ position has now been reached in which this Court is not only free to depart from the approach taken by Laws LJ in MM (Uganda) but indeed is required to do so in order to follow the binding decision of the Supreme Court in KO (Nigeria)”.
The Court of Appeal further indicated it’s endorsement of several Upper Tribunal decisions such as:
In relation to JG, Lord Justice Underhill in AB(Jamaica) however stated that, “ Although we are thus agreeing with the conclusion of the UT in JG v Secretary of State for the Home Department, like Singh LJ I think its approach to the phrase “reasonable to expect” in section 117B(6)(b) was rather wide of the mark. That is a composite phrase, commonly used in ordinary English, in which the real work is done by the word “reasonable” rather than by the word “expect”, which simply reflects the fact that the child would have to leave in order to maintain the relevant relationship with the parent. It does not require elaborate analysis of the concept of “expectation” in other contexts”.
The Court of Appeal in AB(Jamaica) also stated that their decision in VC (Sri Lanka) [2017] EWCA Civ 1967, a deportation case, related to Paragraph 399(a) of the Immigration Rules whose language and structure was of no applicability to Section 117B(6)(a). In this regards, where UTJ Plimmer in SR (Subsisting Parental Relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC), fell into error was where she considered, at paragraphs 36-37 of her judgment, that the interpretation given by McFarlane LJ in VC(Sri Lanka) to paragraph 399 of the Immigration Rules also applied to the interpretation of section 117B(6)(a). That interpretation was wrong and should not be followed.
Lady Justice King in AB(Jamaica) also stated in the context of the question of what amounts to a “genuine and substantial parental relationship” for the purposes of section 117B(6)(a), that the release of relevant information and documents from the Family Court to help inform a decision could be processed by The Protocol on Communications between the judges of the Family Courts and Immigration and Asylum Chambers of the First tier Tribunal and Upper Tribunal [2013] Fam Law 1197 (“The Protocol”)
The types of access the Appellants had
AB, a Jamaican national, had a son, R, born in the UK in 2006. AB’s relationship with R’s mother had deteriorated, but they saw each other around three times a week, during which AB assisted R with his homework.
AO, a Nigerian national’s son, I, was born in the UK in 2010. AO was the subject of family court proceedings, as a result of which he was only permitted “indirect contact” with his son, I, through written letters and similar forms of communication.
The arguments
The central issue in AB was whether section 117B(6) of the 2002 Act applies at all in circumstances where there is no realistic prospect of a qualifying child leaving the UK as a consequence of one of their parents being removed from the UK. This ground was the same as as one of the grounds raised in the case of AO.
Despite other grounds being raised in AO on behalf of the Secretary of State, the Court of Appeal made it clear that the provision which lay at the heart of the appeal in both cases was section 117B(6)(b) of the 2002 Act.
Relevant Statutory Provisions
Sections 117A and 117B form part of Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, which is headed “Article 8 ECHR: Public Interest Considerations”
Section 117B provides:
“…………………….
(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.”
As observed by the Court of Appeal in AB(Jamaica), section 117B(6)(b) needed to be placed in its statutory context. Section 117A of the 2002 Act, as amended by the Immigration 2014 Act, provides that Part 5A of the 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 of the ECHR, and as a result would be unlawful under section 6 of the HRA. In considering what the Act calls “the public interest question”, the court or tribunal must (in particular) have regard (a), in all cases, to the considerations listed in section 117B; and (b), in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
Subsection (3) defines “the public interest question” in subsection (2) to mean “the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).”
It was clear in the Court’s view that the public interest question thus defined is confined to the question which arises under paragraph (2) of Article 8 only. It corresponds to questions 4 and 5 as set out by Lord Bingham in his opinion in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368, at paragraph 17.
The Immigration Rules
The Immigration Rules, Appendix FM allow a person to qualify for limited leave to remain as a parent if a series of requirements are met (see e.g. E-LTRPT.1.1.).
A relevant provision is E-LTRPT.2.4.:
“(a) The applicant must provide evidence that they have either –
i.Sole parental responsibility for the child; or
ii. Access rights to the child; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.”
The Court in AB(Jamaica) noted that neither of the Appellant met these requirements and stated that where a person cannot meet the requirements of Appendix FM, their claim to remain in the country must proceed outside the Rules, by way of a claim under Article 8 of the ECHR.
The Court of Appeal refers to its previous position in MM(Uganda) and MA(Pakistan)
The relevant provisions, in Section 117 of the 2002 Act were considered by the Court of Appeal in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617; [2016] imm AR 954, in particular in the judgment of Laws LJ.
That approach was subsequnelty followed by the Court of Appeal in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) and Another[2016] EWCA Civ 705; [2016] 1 WLR 5093: particular the judgment of Elias LJ at paragraph 14-19. As is plain from paras. 36-44 in the judgment of Elias LJ, if the matter had been free of authority, he would have favoured the arguments presented by the applicants and not those presented by the Secretary of State. However, as he observed at paragraph 45, that approach was inconsistent with the very recent decision of this Court in the MM (Uganda) case. Elias LJ did not think that the Court of Appeal ought to depart from that approach or distinguish it despite the reservations he had about whether it was correct.
Subsequently, the series of cases known as MA (Pakistan) became KO (Nigeria) v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273 in the Supreme Court. That Court held that the approach taken by the Court of Appeal in the MM (Uganda) case was wrong. The Supreme Court endorsed the approach which Elias LJ would have taken at paragraph 36 of his judgment if the matter had been free from authority: see paragraph 17 in the judgment of Lord Carnwath JSC; and generally the discussion by Lord Carnwath at paras. 12-19. It is clear that the approach taken by Laws LJ in MM (Uganda), referred to by Lord Carnwath at paragraph 26 and 31 of his judgment, was considered by him to be wrong: see paragraph 32 in the judgment of Lord Carnwath.
Moving forward – Departure from MM(Uganda) confirmed in light of KO(Nigeria)
In AB(Jamaica) the Court of Appeal made it clear that:
“59.Accordingly, the position has now been reached in which this Court is not only free to depart from the approach taken by Laws LJ in MM (Uganda) but indeed is required to do so in order to follow the binding decision of the Supreme Court in KO (Nigeria). That can be done by following the preferred approach of Elias LJ in MA (Pakistan), at para. 36, where he said:
“Looking at section 117B(6) free from authority, I would favour the argument of the appellants. The focus on paragraph (b) is solely on the child and I 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. I do not deny that this may result in some cases in undeserving applicants being allowed to remain, but that is not in my view a reason for distorting the language of the section. Moreover, 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.”
Reasonable to expect child to leave the UK : interpretation given by the Upper Tribunal in JG as regards section 117B(6)(b) endorsed
The Court of Appeal in AB(Jamaica) noted that the essential submissions which the Secretary of State made was that the condition for section 117B(6)(b) simply did not arise on the facts of the two cases before the Court now. It was submitted that there was no question of either of the relevant children concerned being expected to leave the United Kingdom. In those circumstances there was no need for the Tribunals to ask the question whether it was reasonable to expect them to do so.
In the Court’s judgement, this submission was to be rejected. It foundered on the clear wording of the legislation. As submitted on behalf of AB, it requires the Court to insert words into the Act which are simply not there. Furthermore, as submitted, it required the Court to divide the concept of a “qualifying child” into two types. There was simply no warrant in the legislation itself for doing so.
In this context, the Court of Appeal referred to the recent decision of the Upper Tribunal in JG v Secretary of State for the Home Department [2019] UKUT 00072 (IAC). It was noted that the issue in that case was the same issue as the one that arose in the present appeals in relation to the meaning of section 117B(6)(b) of the 2002 Act. The Upper Tribunal judgment was considered helpful because it was decided after the recent decision of the Supreme Court in KO (Nigeria) and therefore summarises the authorities before that important decision and considers that decision too.
The Court of Appeal noted that at paragraph 27 in JG, the Upper Tribunal said that it did not consider that paragraphs 18-19 of KO (Nigeria)mandate or even lend support to the Secretary of State’s interpretation. In those paragraphs, the point being made by Lord Carnwath and by the authorities he cited was merely that, in determining whether it would be reasonable to expect a child to leave the United Kingdom, one must have regard to the fact that one or both of its parents will no longer be in the UK.
It was noted that at paragraphs 39-40, the Upper Tribunal did not consider that its construction of section 117B(6) could be affected by the Secretary of State’s submission that, in cases where (on his interpretation) the subsection does not have purchase (because the child would not in practice leave the UK at all), there would nevertheless need to be a full-blown proportionality assessment, with the result that a person with parental responsibility who could not invoke section 117B(6) might, nevertheless, succeed in a human rights appeal. The Upper Tribunal concluded that that submission did not begin to affect the plain meaning of subsection (6). It said that, if Parliament has decreed a particular outcome by enacting that subsection, “that is the end of the matter.”
At paragraph 41 the Upper Tribunal in JG concluded: “We accept that this interpretation may result in an underserving individual or family remaining in the United Kingdom. However, the fact that Parliament has mandated such an outcome merely means that, in such cases, Parliament has decided to be more generous than is strictly required by the Human Rights Act 1998. It can be regarded as a necessary consequence of the aim of Part 5A of imposing greater consistency in decision-making in this area by courts and tribunals. The fact that section 117B(6) has such an aim was expressly recognised by Elias LJ at paragraph 44 of MA (Pakistan).”
At paragraph 96, after considering the facts of the particular case before it, the Upper Tribunal in JG concluded that it would not be reasonable to expect the Appellant’s children in that case to leave the UK in the event of her removal. That meant that her appeal succeeded. That was because Parliament had stated, in terms, that the public interest did not require her removal in those circumstances. “It does so despite the fact that, absent section 117B(6), the appellant’s removal would be proportionate in terms of Article 8 of the ECHR.”
The fundamental point, is that Parliament meant what it said when it enacted section 117B(6) and it is the duty of courts and tribunals to give effect to that provision on its correct statutory interpretation. Furthermore, it should be noted that it was common ground between the parties before the Court in AB(Jamaica) that Article 8 must always be complied with. There is no intention evinced in the amendments to the 2002 Act to breach the obligations of the UK under the ECHR. Furthermore, one always has to bear in mind that the strong obligation of interpretation in section 3 of the HRA applies to all legislation, including Part 5A of the 2002 Act. Section 3 requires all legislation to be read and given effect, so far as possible, in a way which is compatible with the Convention rights, including Article 8.
The Court of Appeal confirmed that it agreed with the interpretation given by the Upper Tribunal in JG to section 117B(6)(b) .
Aspects of JG not endorsed
Lord Justice Singh however stated that he would not necessarily endorse everything that was said by the Upper Tribunal in JG in its reasoning, in particular at paragraph 25, as to the meaning of the concept “to expect”. However it was considered that that did not make any material difference to the ultimate interpretation, which he considered was correctly set out by the Upper Tribunal in JG.
In Lord Justice Singh’s view, the concept of “to expect” something can be ambiguous. It can be, as the Upper Tribunal thought at paragraph 25, simply a prediction of a future event. However, it can have a more normative aspect.
Lord Justice Underhill also had this to say in AB(Jamaica):
“116.I agree with the disposal of both these appeals proposed by Singh LJ, for the reasons which he gives. Although we are thus agreeing with the conclusion of the UT in JG v Secretary of State for the Home Department, like Singh LJ I think its approach to the phrase “reasonable to expect” in section 117B(6)(b) was rather wide of the mark. That is a composite phrase, commonly used in ordinary English, in which the real work is done by the word “reasonable” rather than by the word “expect”, which simply reflects the fact that the child would have to leave in order to maintain the relevant relationship with the parent. It does not require elaborate analysis of the concept of “expectation” in other contexts”.
Endorsement of Upper Tribunal decision in SR (Subsisting Parental Relationship)
The Court in AB(Jamaica) stated that it agreed with and endorsed the following passage in the judgment of UTJ Plimmer in SR (Subsisting Parental Relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC), a case which was decided before decision of the Supreme Court in KO (Nigeria), at paragraph 51:
“… It is difficult to see how section 117B(6)(b) can be said to be of no application or to pose a merely hypothetical question. Section 117B(6) dictates whether or not the public interest requires removal where a person not liable to deportation has a genuine and subsisting parental relation with a qualifying child. The question that must be answered is whether it would not be reasonable to expect the child to leave the UK. That question as contained in statute, cannot be ignored or glossed over. Self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be ‘expected to leave’ the UK?”
The Court of Appeal indicated its agreement and stated that it was clear, that the question which the statute requires to be addressed is a single question: is it reasonable to expect the child to leave the UK? It does not consist of two questions, as suggested by the Secretary of State. If the answer to the single question is obvious, because it is common ground that the child will not be expected to leave the UK, that does not mean that the question does not have to be asked; it merely means that the answer to the question is: No.
R (RK) v Secretary of State for the Home Department [2016] UKUT 00031 (IAC) found to be helpful
The Court of Appeal noted that the Secretary of State’s primary submission was that the meaning of “a genuine and subsisting parental relationship with a qualifying child” in section 117B(6)(a) has the meaning that there must be some element of direct care for the child by the relevant person. In support of that submission the Secretary of State relied on the decision of the Court of Appeal in Secretary of State for the Home Department v VC (Sri Lanka)[2017] EWCA Civ 1967, in which the main judgment was given by McFarlane LJ.
The Court of Appeal in AB(Jamaica) stated as follows:
Reference was to the judgment of UTJ Plimmer in SR (Pakistan). In that case UTJ Plimmer also addressed the question of whether there was a “genuine and subsisting parental relationship”, as required by paragraph (a) of section 117B(6). At paragraph 35 UTJ Plimmer said: “The assessment of whether there is a ‘genuine and subsisting parental relationship’ for the purposes of EX.1 and section 117B(6)(a) is different in form and substance to whether a parent has taken an ‘active role’ in the child’s ‘upbringing’ for the purposes of R-LTRPT1.1. It is possible to have a genuine and subsisting parental relationship with a child, particularly in cases where contact has only recently resumed on a limited basis, but for that relationship not to include a parent playing an active role in the child’s upbringing. The fact that SR has not been involved in making important decisions in A’s life does not necessarily mean that he has not developed a genuine and subsisting relationship. The nature and extent of that relationship requires a consideration of all the facts referred to RK at [42]. The child’s age is also likely to be a relevant factor.
The Court in AB(Jamaica) stated that like UTJ Plimmer, it also found helpful the judgment of UTJ Grubb in R (RK) v Secretary of State for the Home Department [2016] UKUT 00031 (IAC). Although the facts of that case were quite different, as they concerned a grandmother and whether she needed to have “parental responsibility” for a child, what UTJ Grubb said at paragraphs 42-43 contains an analysis of the concept of “parental relationship” with which Court of Appeal would respectfully agree: “42. Whether a person is in a ‘parental relationship’ with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. However, it will also include whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation. I accept that it is not necessary for an individual to have ‘parental responsibility’ in law for there to be a relevant factor. What is important is that the individual can establish that they have taken on the role that a ‘parent’ usually plays in the life of their child” And, “43. I agree with Mr Mandalia’s formulation that, in effect, an individual must ‘step into the shoes of a parent’ in order to establish a ‘parental relationship’. If the role they play, whether as a relative or friend of the family, is as a caring relative or friend but not so as to take on the role of a parent then it cannot be said that they have a ‘parental relationship’ with the child. It is perhaps obvious to state that ‘carers’ are not per se ‘parents’. A child may have carers who do not step into the shoes of their parents but look after the child for specific periods of time (for example where the parents are travelling abroad for a holiday or family visit). Those carers may be professionallyemployed; they may be relatives; or they may be friends. In all those cases, it may properly be said that there is an element of dependency between the child and his or her carers. However, that alone would not, in my judgment, give rise to a ‘parental relationship.'”
It was noted that on the facts of SR (Pakistan), at paragraph 40, UTJ Plimmer concluded that SR did have a parental relationship with the child in question and that it was genuine and subsisting for the purposes of section 117B(6)(a). It may have been a limited parental relationship but that did not mean that it was not genuine or subsisting. SR and his daughter, A, had seen each other on a regular fortnightly basis. There were unsupervised sessions that occurred away from a contact centre, in which SR provided A with elements of direct parental care. For that period of time SR was not looking after and directly caring for A in any other capacity than as a parent. Although, therefore, the Judge was satisfied that SR played “no active role in any significant decision-making regarding A’s day to day care and well-being, he had nonetheless developed in recent months a genuine and subsisting parental relationship with her.
Direct Parental Care- Court of Appeal’s decision of VC (Sri Lanka)[2017] EWCA Civ 1967, a deportation case, language and structure of no applicability to Section 117B(6)(a)
The Court of Appeal stated that as was apparent, on the facts of that case, UTJ Plimmer was satisfied that SR was providing an element of “direct parental care”. It was stated that the issue of law which arose before the Court in AB(Jamaica) now was whether such an element is an essential requirement of there being a “genuine and subsisting parental relationship” for the purpose of section 117B(6)(a).
At paragraph 36-37 UTJ Plimmer considered that such an element is required in this context. For that proposition she relied upon the judgment of McFarlane LJ in Secretary of State for the Home Department v VC (Sri Lanka)[2017] EWCA Civ 1967, in particular at paragraphs 42-43.
The Court in AB(Jamaica) stated that it disagreed with UTJ Plimmer that those passages could simply be transplanted to the context of section 117B(6)(a).
This was because it was clear that what McFarlane LJ was considering was the different context of deportation of foreign criminals. That explained the reference to a “very compelling justification” at the end of paragraph 42 and also the last sentence of paragraph 43 in his judgment.
More importantly, the language and structure of paragraph 399(a) of the Immigration Rules which were under consideration by McFarlane LJ in VC (Sri Lanka) are different from the language and structure of section 117B(6)(a).
It was clear that the provisions of paragraph 399 in that case included, as an essential element, that there was “no other family member who is able to care for the child in the UK”. That led McFarlane LJ to interpret the provision as a whole to require “at least some element of direct parental care to the child.” It would however not be right to give the same interpretation to the very different language of section 117B(6)(a).
The Court in AB(Jamaica) noted that, in RK , UTJ Grubb did not add this gloss to the meaning of “parental relationship”. In the Court’s view, UTJ Plimmer was right to derive assistance from what UTJ Grubb had said when she quoted paragraph 42 of his judgment in her judgment in SR (Pakistan). However, where she then fell into error was in the subsequent passage, where she considered, at paragraphs 36-37 of her judgment, that the interpretation given by McFarlane LJ to paragraph 399 of the Immigration Rules in VC (Sri Lanka) also applies to the interpretation of section 117B(6)(a). That interpretation would be wrong and should not be followed.
In rejecting the Secretary of State’s primary submission, the Court Stated the words used in the Act with which they were now concerned are words of the ordinary English language and no further gloss should be put upon them. Their application will depend on an assessment by the relevant court or tribunal of the facts of the particular case before it. The exercise is a highly fact-sensitive one.
The release of relevant information and documents from the Family Court to help inform decision and The Protocol on Communications between the judges of the Family Courts and Immigration and Asylum Chambers of the First tier Tribunal and Upper Tribunal [2013] Fam Law 1197 (“The Protocol”)
Lady Justice King had this to add concerning the question of what amounts to a “genuine and substantial parental relationship” for the purposes of section 117B(6)(a):
The considerable importance which the Family Court places on the right of a child to have a relationship with his parents was restated by Sir James Munby P in Re Q (Implacable Contact Dispute) [2015] EWCA Civ 991; [2016] 2 FLR 287 by reference to an earlier decision of his in 2011: ‘Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
“[19] The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare. There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt. The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems. The key question, which requires “stricter scrutiny”, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. All that said, at the end of the day the welfare of the child is paramount; “the child’s interest must have precedence over any other consideration.”
The recognition of the importance to a child of contact with a parent with whom he is not living is also reflected in the terms of section 117B(6)(a).
In order to demonstrate a genuine and substantial parental relationship, it is common ground that it is not necessary for the absent parent to have parental responsibility and,, it is hard to see how it can be said otherwise than that a parent has the necessary “genuine and substantial parental relationship” where that parent is seeing his or her child in an unsupervised setting on a regular basis, whether or not he has parental responsibility and whether or not by virtue of a court order. Equally, the existence of a court order permitting direct contact in favour of the absent parent is not conclusive evidence of the necessary parental relationship. It may be that a court would conclude that there is no “genuine and substantial parental relationship” where, for example, a parent has the benefit of a court order but does not, or only unreliably and infrequently, takes up his or her contact.
So far as indirect contact is concerned, it should be borne in mind that the Family Court typically strives to promote regular, unsupervised, face to face contact between a child and his or her parent. If a court limits that contact to indirect contact only, that is because the court, in a decision making process in which the child’s welfare is paramount (Children Act 1989, section 1) has decided that such a significant limitation on the parental relationship is in the best interests of the child in question and the reasons for such a decision having been reached by the judge will be highly relevant to the tribunal’s consideration of section 117B(6)(a).
Having said that, whilst perhaps more likely, it is by no means inevitable that a tribunal will conclude that a parent has no “genuine and substantial parental relationship” absent direct contact. It may be that there has been a long gap in contact and that indirect contact marks a gentle re-introduction, or that a parent has to show (and is showing) commitment to indirect contact before direct contact can be introduced. Where however a Family Court has made a final order limiting contact to indirect contact, particularly when there is no provision for progression to direct contact, the tribunal should look closely at the reasons which led to the court making such a restrictive order.
