The supreme court on 24th October handed down a judgment in four linked appeals all involving issues concerning the best interests of children where parent/s faces removal from the UK.
The short and long of the judgement is that discretionary assessment of the impact of removal on a child using a “reasonableness” or “undue harshness” test, is independent of the conduct of the parent of that child, overruling earlier tribunal and Court of Appeal authority to the contrary.
Supreme Court could not be clearer that the “reasonable” test under Paragraph 276ADE(1)(iv) is related solely to the position of the child and not the parent/s.
However, Lord Carnwath goes on to find that the immigration status of the parent or parents are indirectly relevant to the consideration of whether it is reasonable for a child to leave the UK.
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Therefore, it won’t be wrong to say that poor immigration history of the parents will justify the removal of the child from the UK.
The Law
Article 8 of the ECHR: Public Interest Considerations”, was introduced by amendment with effect from 28 July 2014 (section 19 of the Immigration Act 2014). By section 117A it is to apply 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 and would so be unlawful under section 6 of the Human Rights Act 1998. For these purposes, “the public interest question” is defined as the question whether such an interference is justified under article 8(2). Section 117A(2) provides:
Section 117B: “reasonable”
This section, although similar in construction to 276ADE(1)(iv), is applicable only to tribunals and courts, not officials at the Home Office and directed to the parent unlike paragraph 276ADE(1)(iv).
In the above decision, the Supreme Court also decided that the same test would apply to s117B assessment. I.e. the conduct of the parents is not relevant to the assessment of whether it is reasonable for the child to leave the UK. This makes rational sense because in most of the cases under 7 years child policy parents don’t have leave to remain in the UK.
A Qualifying Child
A “qualifying child” is defined for this purpose as a person under the age of 18 who is a British citizen, or “(b) has lived in the United Kingdom for a continuous period of seven years or more” (section 117D(1)). The exclusion of persons “liable to deportation” covers non-British citizens whose deportation is deemed “conducive to the public good” and “foreign criminals” as defined by the UK Borders Act 2007 (see Immigration Act 1971 section 3(5); UK Borders Act 2007 section 32(1)-(4)).
