The Court of Appeal in NA (Bangladesh) & Ors v Secretary of State for the Home Department  EWCA Civ 953 (24 June 2021) has just decided that the “powerful reasons doctrine” in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber)  EWCA Civ 705,  1 WLR 5093 no longer remains good law, following KO (Nigeria) v Secretary of State for the Home Department  UKSC 53,  1 WLR 5273.
Not only that, but NA(Bangladesh) concludes that the seven-year provision does not create a presumption in favour of a seven-year child and their parents, being granted leave to remain.
In summary, the appeal in NA(Bangladesh) concerned two Bangladeshi nationals, who having overstayed in the UK since 2005 and 2009 respectively, submitted a leave to remain application based on the 7year Rule in reference to the relevant qualifying child(YS), who was born in the UK on 21 July 2010.
The application of 5 April 2018 was refused on16 August 2018. On appeal, both the First Tier Tribunal and Upper Tribunal dismissed the appeal.
The Court of Appeal noted that permission to appeal had been given as it was considered that the appeal raised an issue of general importance about the correct approach to paragraph 276ADE (1) (iv) of the Immigration Rules and section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (which falls under Part 5A of the Act).
YS ‘s claim was based on paragraph 276ADE (1) (iv) of the Rules, under which a person under the age of 18 will be entitled to leave to remain if they have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect them to leave the UK. YS had at the time of the Secretary of State’s decision lived in the UK for more than seven years, and it was his case that it would not be reasonable to expect him to leave the UK.
Section 117B (6) of the 2002 Act states:
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.”
“Qualifying child” is defined by section 117D (1) as:
“a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more.”
YS’s parents and his younger sibling, were not entitled to leave to remain under the Rules. The parents relied on section 117B (6).
The Court noted that YS had at all material times been a qualifying child under alternative (b) because he had lived in the UK for more than seven years. There was no dispute that both parents had a genuine and subsisting parental relationship with him, and accordingly that element (a) in subsection (6) was satisfied. The only issue, as regards the parents’ claim, was whether, as required by element (b), it was reasonable to expect YS to leave the UK. If it was not, the parents would be entitled to leave to remain, and YA would have to be given leave to remain with them.
PD (Sri Lanka) v Secretary of State for the Home Department  UKUT 108 (IAC)
EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874
It was the Appellants’ case that in considering the reasonableness question the Upper Tribunal should have proceeded on the basis that it would not be reasonable for a seven-year child to be expected to leave the United Kingdom unless there were “powerful reasons to the contrary” –, ie “the powerful reasons doctrine”. It was submitted that such an approach was required by the decision of the Court of Appeal in (MA (Pakistan).
It was submitted that it was an error of law for the Upper Tribunal to hold that “the powerful reasons doctrine” did not survive KO (Nigeria).
MA(Pakistan)’s approach to the “reasonableness test”
The Court in NA(Bangladesh) stated that the main issue of principle decided in MA(Pakistan), in which Elias LJ gave judgement, was whether, in considering whether it was reasonable to expect a child to leave the UK when he or she had lived here continuously for seven years, the focus should only be on factors relating to the child (“the narrower approach”) or should incorporate all matters bearing on the public interest, including the conduct and immigration history of the parents (“the wider approach”).
Elias LJ in MA(Pakistan):
- rejected at paragraph 40 of his judgement a potential argument in favour of the wider approach that since it is generally in a child’s best interests to live as part of the family unit, it will generally be reasonable to expect the child to leave the United Kingdom with the parents if they do not have leave to remain
- at paragraph 45 of his judgment stated that the then very recent decision in MM (Uganda) v Secretary of State for the Home Department EWCA Civ 450 constituted binding authority in favour of the wider approach
Having adopted the wider approach, Elias LJ referred to how “the reasonableness test” should be applied:
“46.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. Indeed, the Secretary of State 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” in which it is expressly stated that once the seven years’ residence requirement is satisfied, there need to be “strong reasons” for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. 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 “powerful reasons doctrine” emanates from Paragraph 48 of Elias LJ’s judgment:
“48. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, 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”.
What the Supreme Court in KO(Nigeria) said regarding the approach to the “reasonableness test”
Lord Carnwath delivered the only judgment in KO(Nigeria). He referred to the decision of the Upper Tribunal, in PD (Sri Lanka) and stated at paragraph 10, referring to an Immigration Directorate Instruction:
“The President … cited … relevant guidance contained in an Immigration Directorate Instruction (‘IDI’) of the Home Office entitled ‘Family Life (as a partner or parent) and Private Life: Ten Year Routes’, published in August 2015, extracts of which were appended to the judgment … . They included a section headed ‘Would it be unreasonable to expect a non-British citizen child to leave the UK?’, under which were set out a number of ‘relevant considerations’, such as risk to the child’s health, family ties in the UK and the likelihood of integration into life in another country and:
‘b. Whether the child would be leaving the UK with their parent(s)
It is generally the case that it is in a child’s best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK.’
There was no reference in the list to the criminality or immigration record of the parents as a relevant factor.”
At paragraphs 16 to 17 of his judgement, Lord Carnwath considered the interpretation of paragraph 276ADE (1) (iv) and section 117B (6). The Court in NA(Bangladesh) summarised the effect of Lord Carnwath’s considerations in those paragraphs:
- the reasonableness question must be approached in the same way under both paragraph 276ADE (1) (iv) and section 117B (6); and
- agreeing with Elias LJ’s preferred narrower approach in MA(Pakistan)and over-ruling MM (Uganda), both provisions are concerned only with “what is ‘reasonable’ for the child”, and accordingly that the conduct of the parents is irrelevant.
At paragraph 18 of his judgement in KO(Nigeria), Lord Carnwath stated:
“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,  ScotCS CSOH 117:
’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 …”
Lord Carnwath went on to state at paragraph 19 in KO(Nigeria):
“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  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.”
In relation to paragraphs 18 and 19 set out above, the Court in NA(Bangladesh) sought to simply matters and stated that Lord Carnwath’s point was that, notwithstanding his conclusion that the parents’ conduct is not material as such, to the extent that it has led to their not having leave to remain it will still have been “indirectly” material to the reasonableness question because:
- the reasonableness question has to be considered on the “hypothesis” that the parents will have to leave (that is the so-called “real world” point supported by the citation of SA (Bangladesh)and EV (Philippines), and
- it will normally be reasonable for a child to be with their parents.
“powerful reasons doctrine” in MA(Pakistan) inconsistent with Lord Carnwath’s reasoning in KO (Nigeria)
In NA(Bangladesh), the Court of Appeal emphasised the following:
- for the purpose of the specific point that Lord Carnwath was making in paragraph 18, it was only necessary for him to establish that the fact that the parents had no leave to remain couldaffect the outcome, not that it normally would.
- Although Lord Carnwath’s reasoning is expressed in terms of it normally being reasonable for a child to bewith their parents, not of it normally being reasonable for him or her to leave with them, it was not right to read his judgment in so limited a sense.
- The upshot is that the effect of Lord Carnwath’s reasoning in KO (Nigeria)is that, even on the narrower approach, in a case falling under the seven-year provision where neither parent has leave to remain the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the qualifying child to leave the UK with their parents. That is necessarily inconsistent with the so-called “powerful reasons doctrine” apparently endorsed by Elias LJ in MA (Pakistan).
The seven-year provision does not create a presumption in favour of a seven-year child and their parents being granted leave to remain
In dismissing the appeal in NA(Bangladesh), the Court of Appeal concluded:
- It followed from the analysis provided that the Upper Tribunal Judge was right to reject the submission that “the powerful reasons doctrine” remained good law
- the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain.
- It was important, however, to emphasise that the approach approved by Lord Carnwath in KO (Nigeria)does not provide for a presumption in the opposite direction. It represents no more than a common-sense starting-point, adopted for the reasons given at paragraphs 18 to19 of his judgment.
- It remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents.
- If the conclusion of the evaluation is that this would not be reasonable, then the “hypothesis” that the parents will be leaving has to be abandoned and the family as a whole will be entitled to leave to remain: in the case of a qualifying child that will be under paragraph 276ADE (1); in the case of the parents it will be under article 8, applying section 117B (6); and in the case of any non-qualifying child it will derive from the fact that the parents have leave.
- It was made clear that the Secretary of State acknowledged that in that evaluation the fact that the child had been in the UK for more than seven years would be a material consideration,
- A question posed on behalf of the Appellant was noted: if the effect of passing the seven-year milestone is not to create some kind of presumption against removal what is its significance? In response, the Court indicated that it agreed with the Secretary of States submission that the question failed to take into account the fact that the seven-year provision is, as it is put in Runa, a one-way provision which, if it is satisfied, definitively answers the public interest question in favour of the child (and his or her parents) without the need to undertake a general proportionality exercise. That means that other considerations weighing in favour of removal (such as the conduct of the parents) are excluded, as the endorsement in KO (Nigeria)of the “narrower approach” confirms.
- In relation to the submission that on the facts of the case if the Upper Tribunal Judge had applied the “powerful reasons doctrine” he would have had to allow the appeal, the Court concluded that there was no such doctrine meant that that question does not arise.
- It was noted that the Appellant’s case in the First-tier Tribunal was that the return of the family to Bangladesh would cause difficulties and disruption for the children, and particularly for YS, who had some medical problems. The Court of Appeal however stated that the conclusion of both tribunals was that those difficulties were not such that it would be unreasonable to expect YS to return or to render his removal otherwise disproportionate.
Many a case has been won relying on the “powerful reasons doctrine” in MA(Pakistan). Unfortunately, that “doctrine” has now been laid to rest.
Unless there is more to the facts, the parents in NA(Bangladesh) seem to have remained in the UK without leave for a considerable number of years, during which time it seems, no applications to regularise their status were made to the Home Office until after YS was well over the age of 7years. Many applicants relying on the 7year rule will similarly have remained under the “radar” for many years. Unless able to establish that it would be reasonable to expect the relevant child to leave the UK, NA(Bangladesh)’s restatement of principles relevant to the “reasonableness test” has potentially devastating consequences.
The Court of Appeal did note that on 11 November 2020 YS became a British citizen, but stated that was common ground that that fact was immaterial since it post-dated the decision which was the subject of the original appeal.
If YS’s parents were to submit a further application relying on the fact that they now have a British citizen child, would that application have a better chance of success? In such circumstances, the application itself to the Home Office would no longer include reliance on the 7year rule, but on exceptional circumstances(section 117B(6) would however kick in again at appeal if the application is refused, with the result that the same conclusions could be reached even if reliance is being placed upon family life with a British child).
On raising exceptional circumstances, the provisions of Appendix FM would be relevant:
“GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.
(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application”.
Family Policy, Family life (as a partner or parent), private life and exceptional circumstances, relevantly defines the meaning of “relevant child”, “exceptional circumstances” and ‘unjustifiably harsh consequences’.
Alternatively, as YS is a British citizen child, an application may be made under the EU Settlement Scheme by the parents as a “person with a Zambrano right to reside”.