Supreme Court: The meaning of ‘unduly harsh’ and ‘reasonableness’ in child immigration cases

On Wednesday 24th October 2018, the UK Supreme Court tackled the application of the terms, ‘unduly harsh’ and ‘reasonableness’ in child immigration cases in the case of KO (Nigeria) & Others (Appellant) v SSHD [2018] UKSC53.

What legislation was in question?

Where a person is subject to immigration controls, and is required to be removed, Section 117B lists the points for the court to take into account. The factors under the scrutiny of the Supreme Court, were centred upon Section 117B(6) and Section 117C(5):

“(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where-

• The person has a genuine and subsisting parental relationship with a qualifying child, and
• It would not be reasonable to expect the child to leave the United Kingdom.”

Section 117C(5) describes “unduly harsh” as applying where:

“(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported.”

In this matter, the appellants were relying on the second limb of Section 117C(5), by claiming that KO’s immigration history and conduct were not relevant in assessing the child’s situation. Whereas, the respondents contended that both of the above provisions should form part of a balancing exercise.

Relevant Case-Law

Lord Carnwath in his judgment assessed previous case-law such as Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, R (Agyarko) v Secretary of State for the Home Department [2017] UKSC11, and Huang v Secretary of State for the Home Department [2007] UKHL 11.

Notably, Lord Carnwath raised the case of Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 in his judgment, highlighting the principle that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent”.

When evaluating the case of MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093, Lord Cornwath emphasised that “There is nothing… to suggest that “reasonableness” is to be considered otherwise than in the real world in which the children find themselves.”

Following a comparison of the terms ‘reasonableness’ and ‘unduly harsh’, Lord Carnwath stated that: “the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals.” This has resolved the ambiguities around the differences between the two terms and the threshold to be applied by the tribunals when applying these statutory provisions.

In the case of MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435 (‘MAB’), UT Judge Southern stated that his decision to deport the parent, notwithstanding that their children and partner would remain in the UK, would have altered had his focus been directed to be on the children. Lord Carnwath weighed the case of MAB against the case of MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, in assessing to what extent should different levels of criminality be considered.

What the Supreme Court Held

The assessment of the above case-law resulted in the Supreme Court’s ruling that when conducting an assessment of the impact of deportation of a foreign criminal parent on a child in question under s.117C(5) of the Nationality Immigration and Asylum Act 2002, or paragraph 399 of the Immigration Rules, the Tribunal is not entitled to consider parental misconduct or the public interest. This focus demonstrates a shift by the courts in favour of a child-centred consideration. This approach is also to be adopted when interpreting the term “unreasonable” in the context of section 117B(6) of the 2002 Act or paragraph 276ADE(1)(iv) of the Rules.

To read the full judgment for KO (Nigeria) & Others (Appellant) v SSHD [2018] UKSC53, follow this link.

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