Zambrano claimants applying under the Immigration (European Economic Area) Regulations 2016 are being railroaded by the Home Office. Access to a derivative right of residence is being severely restricted, if not shut altogether.
“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)”.
Following the Supreme Court’s judgment in KO (Nigeria) & Ors v Secretary of State for the Home Department  UKSC 53, the Upper Tribunal in JG (s117B(6) : “reasonable to leave” UK) Turkey (Rev 1)  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.
For those who have over the years managed to keep a close eye on caselaw relating to deportation of foreign nationals, the Upper Tribunal judgment is a “welcome” reminder of already known caselaw and principles. Those yet to catch up, are encouraged to do so. There is no escaping the avalanche of caselaw.
To add to matters, the Upper Tribunal chose on the same day, 11 April 2019, to publish yet more caselaw on deportation: MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 122 (IAC) (4 March 2019). As per paragraph 1 of RA : “In this appeal and that of MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 00122 (IAC), which was heard consecutively, we consider how section 117C (Article 8: Additional considerations in cases involving foreign criminals) should be construed, following the judgment of the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department  UKSC 53”.
The blog post “ Part 1 after KO(Nigeria)”, separately looks at how the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq  UKUT 123 (IAC) (4 March 2019) set out its considerations on the unduly harsh test following KO (Nigeria) v Secretary of State for the Home Department UKSC 53. This first post therefore has regard to the issues arising in KO(Nigeria) as well as setting out the extract provisions in “Section 117C Article 8: additional considerations in cases involving foreign criminals”.