Upper Tribunal on the interpretation of Section 117B(6)(b) and how a “reasonable to leave” construction can be more favourable than an Article 8 proportionality exercise

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Following the Supreme Court’s judgment in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53,  the Upper Tribunal in JG (s117B(6) : “reasonable to leave” UK) Turkey (Rev 1) [2019] UKUT 72 (IAC) (15 February 2019), considered the proper construction of Section 117B(6) with the surprsing result that on the facts, an Appellant who was found to be, “both dishonest and unscrupulous, each to a high degree…… flagrantly defied the law of the United Kingdom by overstaying her leave for a large number of years”, succeeded in her appeal.

 

The Upper Tribunal concluded that JG’s appeal succeeded because Parliament had stated that the public interest did not require her removal, her circumstances considered, despite the fact that, absent section 117B(6), her removal would be proportionate in terms of Article 8 of the ECHR.

 

As per the Upper Tribunal’s judgement, they accepted that their interpretation of Section 117(B)(6), “ may result in an underserving individual or family remaining in the United Kingdom”.

 

The Statutory provisions

 

Section 117B(6) in Part 5A (Article 8 of the ECHR: Public interest considerations) of the Nationality, Immigration and Asylum Act 2002 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.”

 

Section 117B(6) lies within the section which sets out “public interest considerations applicable in all cases” where a court or tribunal has to determine whether a decision made under the Immigration Acts constitutes a disproportionate interference with a person’s right to respect for private and family life under Article 8 of the ECHR.  Section 117A(2) states that, in considering this “public interest question”, the court or tribunal must, in particular, have regard in all cases to the considerations listed in section 117B.

 

Relevant Immigration Rules

 

Section EX of Appendix FM (Family members) to the Immigration Rules contains exceptions to certain eligibility requirements for leave to remain as a partner or parent.  So far as relevant, EX.1 provides as follows:-

 

“EX.1. This paragraph applies if

 

(a)(i) the applicant has a genuine and subsisting parental relationship with a child who –

 

(aa)   is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

 

(bb)   is in the UK;

 

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

 

(ii)taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or

 

……………………..”

 

 

The Issue

 

The issue before the Upper Tribunal in JG (s117B(6) : “reasonable to leave” UK) Turkey (Rev 1) [2019] UKUT 72 (IAC) (15 February 2019) was what is the proper interpretation of paragraphs 18 and 19 in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53 .

 

On behalf of the Secretary of State, it was submitted that these paragraphs support a construction of section 117B(6)(b), whereby the application of subsection (6) depends upon a tribunal finding, on the particular facts of the case, that the child will be expected to leave the United Kingdom if the person concerned is removed.

 

The reason why the Secretary of State’s construction of section 117B(6) was crucial in JG was that, having heard evidence from the Appellant and her British partner( also an Italian citizen), it was apparent that, if the Appellant were to be removed from the United Kingdom, it was, as a matter of fact, very unlikely that her British children would follow her.  Once outside the United Kingdom, the Appellant would apply for entry clearance, on the basis of Article 8, as she should have done in 2014 (instead of making dishonest applications to enter as a visitor).  Accordingly, in the “real world” scenario, the children would not be likely to leave the United Kingdom to join the Appellant, whether in Turkey or elsewhere, whilst she went through the entry clearance process.  The children would, in reality, continue living with their father and their paternal grandparents in the Midlands, where they were both attending school.

 

The submission on behalf of the Appellant was that she did not disagree with that scenario.  Rather, it was submitted that it was irrelevant.  Section 117B(6) does not, was the submission, depend upon what is likely to happen in the “real world”.  Rather, it requires the Tribunal to hypothesise that the children would leave the United Kingdom and ask whether that would be reasonable.

 

Relevant paragraphs in KO(Nigeria)

 

It was noted that in his judgment, Lord Carnwath in KO(Nigeria) qualified what he had said about the scope of the “reasonableness enquiry”:-

 

“18.  On the other hand, as the IDI guidance acknowledges, it seems to me 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.  The point was well -expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245:

 

“22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, ‘Why would the child be expected to leave the United Kingdom?’ In a case such as this there can only be one answer: ‘because the parents have no right to remain in the UK’  .  To approach the question in any other way strips away the context in which the assessment of reasonableness is being made…”

 

19.He noted (para 21) that Lewison LJ had made a similar point in considering the “best interests” of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58:

 

“58.  In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world.  If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted.  If neither parent has the right to remain, then that is the background against which the assessment is conducted.  Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?”

 

To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree.  There is nothing in the section to suggest that “reasonableness” is to be considered otherwise than in the real world in which the children find themselves.”

 

How the Upper Tribunal addressed the issues

 

 

The Upper Tribunal sought to address the issues in the light of paragraphs 18 and 19 of KO (Nigeria) :

 

    • The Upper Tribunal stated that   “to expect” something is to regard that thing as likely to happen.  If it is decided to wait at home on a particular day in order for a parcel to be delivered, it is on the basis that it is considered likely the Post Office or delivery company will deliver the parcel on that day.  Many other such examples could be given.  The key question, therefore, is whether the element of conditionality which is introduced by the word “would” in section 117B(6)(b) governs both the question of reasonableness and that of expectation; in other words, whether one must hypothesise that the child leaves the United Kingdom, whether or not in the “real world” he or she is likely to do so.

    • The Upper Tribunal considered that, purely according to the ordinary principles of statutory construction, the interpretation for which the Appellant contended was the correct one.  As a matter of ordinary language the question “Would it be reasonable to do X?” presupposes the doing of X.  It is unlikely to be an appropriate or helpful response to such a question to refuse to answer it on the basis that one does not intend to do X

    • The Upper Tribunal not consider that paragraphs 18 and 19 of KO (Nigeria) mandate or lend support to the Secretary of State’s interpretation.  In those paragraphs, it was considered that the point being made by Lord Carnwath and by the judges in the cases he cited is merely that, in determining whether it would be reasonable to expect the child to leave the United Kingdom, one must have regard to the fact that one or both of the child’s parents will no longer be in the United Kingdom, because they will have been removed by the respondent under immigration powers.  That, is the extent of the “real world” envisaged by Lord Carnwath.

 

Extracts of the Secretary of State’s Guidance, IDI relied upon

 

The Upper Tribunal noted that in KO (Nigeria) , the Supreme Court had regard to the Secretary of State’s Guidance in its examination of section 117B(6).

 

The Upper Tribunal in JG were referred to the then latest relevant publication, namely “Family Migration: Appendix FM Section 1.0b”.  At page 36 of 104 of this document, dealing with EX.1.(a), the guidance stated that:-

 

“First, the decision maker must assess whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so.  Where the decision maker decides that the answer to this first stage is yes, then they must go on to consider secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK.”

 

At page 68 of 104 of the Guidance under the heading “Is the child a British citizen or have they lived in the UK for a continuous period of at least 7 years?”:-

 

“If the departure of the parent or carer would not result in the child being required to leave the UK, because the child will (or is likely to) remain living here with another parent or primary carer, then the question of whether it is reasonable to expect the child to leave the UK will not arise.  In these circumstances, paragraph EX.1.(a) does not apply.

 

However, where there is a genuine and subsisting parental relationship between the applicant and the child, the removal of the applicant may still disrupt their relationship with that child.  For that reason, the decision maker will still need to consider whether, in the round, removal of the applicant is appropriate in light of all the real-life circumstances of the case, taking into account the best interests of the child as a primary consideration and the impact on the child of the applicant’s departure from the UK, or them having to leave the UK with them.  If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of exceptional circumstances.”

 

At page 69 of 104 of the Guidance specific reference was made to KO (Nigeria) :-

 

“In the caselaw of KO and Others 2018 UKSC 53, with particular reference to the case of NS (Sri Lanka), the Supreme Court found that “reasonableness” is to be considered in the real-world context in which the child finds themselves.  The parents’ immigration status is a relevant fact to establish that context.  The determination sets out that if a child’s parents are both expected to leave the UK, the child is normally expected to leave with them, unless there is evidence that that it would not be reasonable.”

 

 

The Upper Tribunal’s criticism of the Guidance

 

The Upper Tribunal found that there were a number of things to say about the Secretary of State’s Guidance:

 

  • The Guidance could not override ordinary principles of statutory construction.  If, applying those principles, a court or tribunal determines that a statutory provision falls to be interpreted in a particular way, the fact that the Guidance may take a different view is irrelevant.

  • The Guidance does not cite KO (Nigeria) in support of the proposition that it is only where the child would be required to leave the United Kingdom that EX.1.(b) or section 117B(6) falls to be considered.  The citation of KO (Nigeria) merely recognises that, in deciding what would be reasonable, one must have regard to the fact that one or both parents is liable to removal under immigration powers.

  • A previous version of the Guidance, pre-dating KO (Nigeria) , contained statements to the effect that if the departure of a parent would not result in the child being required to leave the United Kingdom, the question of whether it was reasonable to expect the child to leave would not arise.  This was noted by Upper Tribunal Judge Plimmer in SR (subsisting parental relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC).  At paragraph 50 of her decision, Judge Plimmer said that “This aspect of the 2018 IDI provides an untenable construction of the plain and ordinary meaning of EX.1. and section 117B(6)”.  At paragraph 51, she held that “Self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK”.  The Upper Tribunal in JG stated that for the reasons given, nothing in KO (Nigeria ) affects the correctness of her conclusion.

  • The Upper Tribunal did not consider their 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 (i.e. because the child would not in practice leave the United Kingdom), there would nevertheless need to be a full-blown proportionality assessment, compatibly with the other provisions of Part 5A of the 2002 Act, with the result that a person with parental responsibility who could not invoke section 117B(6) may, nevertheless, succeed in a human rights appeal.

  • Such an assessment would, however, have to take account of the immigration history of the person subject to removal; so there could well be a very real difference between the outcome of that exercise, and one conducted under section 117B(6). But, the real point was that this submission did not begin to affect the plain meaning of subsection (6). If, as found by the Upper Tribunal, Parliament has decreed a particular outcome by enacting section 117B(6), then that is the end of the matter.

  • The Upper Tribunal stated that they accepted 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) .

 

How the Apellant’s case would have failed if consideration was confined to Article 8 proportionality human rights considerations

 

In summary, the Upper Tribunal in JG found as follows having heard oral evidence from the Appellant and her partner:

 

  • Their assessment of the Appellant was that she was both dishonest and unscrupulous, each to a high degree.  She flagrantly defied the law of the United Kingdom by overstaying her leave for a large number of years, without bothering to seek to regularise her status; by making entry clearance applications that she knew full well were predicated on an entirely false basis; and in gaining access to the United Kingdom by employing dishonesty.

  • She was a person who would not scruple to break the law, if it served her purposes.

  • There were inconsistencies in the evidence given by the Appellant and her partner.

 

The Upper Tribunal stated that applying the “real world” analysis of paragraphs 18 and 19 of KO (Nigeria) , the assessment of whether it would be reasonable in terms of section 117B(6) to expect the children of the Appellant and her partner to leave the United Kingdom fell to be determined on the basis that there are powerful reasons why the Appellant should be removed by the respondent under section 10 of the Immigration and Asylum Act 1999.

 

In so concluding, the Upper Tribunal applied the law as set out by the House of Lords in Chikwamba v SSHD [2008] UKHL 40 and in subsequent cases, including Hayat v Secretary of State for the Home Department [2012] EWCA Civ 1054.  Following the approach adopted by Upper Tribunal Judge Gill in R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM – Chikwamba – temporary separation – proportionality) (IJR) [2015] UKUT 189 (IAC), the Upper Tribunal in JG acknowledged that where an application for entry clearance from abroad was likely to be granted ad where there would be significant interference with family life by temporary removal of the person making that application, then the weight to be accorded to the requirements of obtaining entry clearance (that is to say, to that aspect of immigration control) is to be reduced, particularly in cases involving children.

 

The Upper Tribunal entirely agreed with the Secretary of State that the present case was a paradigm instance of where, compatibly with the so-called Chikwamba principle, it would nevertheless be proportionate to insist upon the appellant returning to Turkey in order to make, an honest application for entry clearance.

 

Public confidence in the Secretary of State’s system of immigration control was likely to be adversely affected if JG were to be absolved from the requirement to obtain valid entry clearance.  Her removal for that purpose would not have a disproportionate effect upon her children or her partner.  The family had, in the past, taken the decision to leave the Appellant in Turkey, whilst the partner and the children returned to the UK.  The partner’s work on his development project would shortly end and he would be able to look after the children during the Appellant’s absence.  He also had the ability to call on his own parents (with whom he and the children live) to help in this regard.  The Upper Tribunal did not consider it likely that the grandparents, with whom the children were said to have a close relationship, would put their personal enjoyment ahead of the interests of their grandchildren, by holidaying abroad during this time.

 

Thus, if the Secretary of State’s construction of section 117B(6) were correct, the Appellant’s appeal would fall to be dismissed.  Requiring the appellant to make an entry clearance application from abroad (which, notwithstanding her immigration history, was likely to be successful) would not be a disproportionate interference with her Article 8 rights or those of her children and her partner.

 

How the Appellant’s claim succeeded by application of Section 117(B(6)

 

The Upper Tribunal reasoned and concluded as follows:

 

  • For the reasons they had given, the Upper Tribunal were satisfied that the Apellant’s construction of section 117B(6) was, in fact, the correct one.  Even though, on their findings, it was unlikely that the children would leave the United Kingdom, if the Appellant were removed, on the hypothesis (which section 117B(6)(b) demands) that they are expected to leave, the Upper Tribunal had to determine whether it would be reasonable for them to do so.

  • Section 117B(6) concerns an assessment of the reasonableness of a child’s leaving the United Kingdom. It does not expressly demand an assessment of reasonableness by reference to the length of time the child is expected to be outside the United Kingdom.

  • In the light of paragraphs 18 and 19 of KO (Nigeria ), the child’s destination and future are to be assumed to be with the person who is being removed.

  • The Upper Tribunal enquired whether in a case where the Secretary of State’s position is that the person who is being removed can be expected to make an entry clearance application, did this require the Tribunal’s assessment to take this into account, in determining whether it would be reasonable for the child to leave? The Upper Tribunal stated that there may be a good deal of difference between a child living outside the United Kingdom for a matter of months and facing an indefinite period abroad.

  • The Upper Tribunal concluded that in the circumstances, they did not consider it necessary to resolve the question; the Chikwamba principle is predicated on the assumption that, where there are children, it is not envisaged that they would be expected to go and stay with the parent concerned, whilst the latter makes an application for entry clearance. To envisage otherwise would be almost to stand the principle on its head.

  • In any event, in determining whether it would be reasonable for children to leave in these circumstances, the likely temporary nature of the absence from the United Kingdom may well be said (as in the present case) to make it unreasonable to expect the children to leave.

  • The Upper Tribunal posed the question of whether it was reasonable for children to have their education disrupted, so that they could be with a parent making an entry clearance application, which is predicated on the need (and, thus, Article 8 case) to be with the children in the United Kingdom.

  • The Upper Tribunal found that the children were settled at school, where the daughter, in particular, was excelling academically.  The children were being raised in a Roman Catholic academic and social environment.  Notwithstanding the Upper Tribunals concerns about the Appellant’s credibility, they were satisfied that it is likely to be difficult to achieve anything similar for the children in Turkey.  Notwithstanding their time there, the Upper Tribunal was satisfied that the children could not speak Turkish and had no material understanding of what it was like to live there.

  • Even assuming the children were able to return to their United Kingdom school, once their mother’s immigration status had been regularised, their education would be likely to have suffered material disruption, in the meantime.  In all the circumstances, putting the children’s best interests as a primary consideration, the Upper Tribunal did not find that it would be reasonable to expect them to face this difficulty.

  • On the Secretary of State’s suggestion that if the children could not reasonably be expected to go to Turkey, then they could go to Italy, along with the Appellant and her partner ,the Upper Tribunal stated that the disruption to the children’s academic and social environment would, however, be the same, in that the progress of the children’s education at their United Kingdom school would be disrupted, albeit that opportunities for English language teaching in a Catholic environment would, of course, be greater in Italy.

  • The Upper Tribunal concluded that, on the facts of this case, it would not be reasonable to expect the Appellant’s children to leave the United Kingdom, in the event of her removal.  This meant that the Appellant’s appeal succeeded.  It did so because Parliament had stated, in terms, that the public interest does not require her removal, in these circumstances.  It did so despite the fact that, absent section 117B(6), the Appellant’s removal would be proportionate in terms of Article 8 of the ECHR.

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