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

In Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 (12 April 2019), the Court of Appeal, among other issues considered Section 117(B)(6) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, in the following respects:

 

  • “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)”.

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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

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.

 

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Part 1 after KO(Nigeria): The Upper Tribunal weighs in on the unduly harsh test

“We make no apology for dwelling upon NA (Pakistan)”,  state the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) (4 March 2019) in a seeming mammoth judgement setting out, breaking down and applying the law relating to deportation of foreign nationals following the Supreme Court’s decision in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53

 

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 [2019] 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 [2019] 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 [2018] UKSC 53”.

 

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Part 2 after KO(Nigeria): “Very Compelling Circumstances” require regard to the seriousness of the offence and relevant public interest considerations

The blog post “ Part 1 after KO(Nigeria)”,  separately looks at how the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] 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 [2018] 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”.

 

In MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) (4 March 2019), the Upper Tribunal considered whether paragraphs 20 to 22 of the judgment of Lord Carnwath in KO (Nigeria) changed the way in which courts and tribunals must approach their task under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

 

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