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The Court of Appeal interprets s.117B(6)

In Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661, the Court of Appeal further considered the interpretation of section 117B(6) of the Nationality, Immigration and Asylum Act 2002. It did so in two respects:

  1. Whether s.117B(6) applies only in cases where the qualifying child will in fact leave the UK as a consequence of the parent’s removal; and
  2. Whether “genuine and subsisting parental relationship” requires at least some element of direct parental care to the child.

Single question: Is it reasonable to expect the child to leave the UK?

Not surprisingly, the Court of Appeal agreed with the interpretation of s.117B(6)(b) given by the Upper Tribunal in, not one, but two reported judgments, JG v Secretary of State for the Home Department [2019] UKUT 00072 and SR (Subsisting Parental Relationship – s117B(6)) Pakistan [2018] UKUT 00334.

The Secretary of State’s argument suggested that the statute requires two questions to be addressed: not simply whether it would be reasonable for the child to leave the UK but also whether there is a realistic prospect of a child leaving the UK as a consequence of one of their parents being removed.

At paragraph 75 of his judgment, Singh LJ held that the statute only requires a single question to be addressed: is it reasonable to expect the child to leave the UK? If it is common ground that the child will not be expected to leave the UK, that does not obviate the need to ask the question; it simply indicates it should be answered in the negative.

Both Singh LJ and Underhill LJ in his closing paragraph, whilst agreeing with the UT’s conclusion in JG, did not approve of its approach to the phrase “reasonable to expect”. Particularly, Underhill LJ, at paragraph 116, held as follows:

“[…] That is a composite phrase, commonly used in ordinary English, in which the real work is done by the word “reasonable” rather than by the word “expect”, which simply reflects the fact that the child would have to leave in order to maintain the relevant relationship with the parent.  It does not require elaborate analysis of the concept of “expectation” in other contexts.”

I personally find it important that Underhill LJ highlighted that the phrase, its emphasis on the word “reasonable”, reflects the need to maintain the relevant relationship with the parent facing removal. In my view, the Home Office’s argument that s.117B(6) does not apply if there is no realistic prospect of a qualifying child leaving the UK stems from conflating the Zambrano test with the test in s.117B(6).

The principle behind Zambrano rights is the need to protect an EU citizen from being forced to leave the EU and, therefore, from being deprived of the substance of their EU citizenship rights, as a consequence of their primary carer being removed from the UK. For that reason, the focus is on whether the EU citizen will in fact have to leave the EU or not.

Conversely, under Article 8, to which s.117B(6) gives effect, the focus is on the maintenance of family life. For that reason, absent liability to deportation, the separation of a parent and a qualifying child with whom they have a genuine and subsisting parental relationship is not envisaged at all. Quite simply, if it would be reasonable for the child to leave the UK with the parent being removed, the parent can be lawfully removed. If it would not be reasonable, then the parent cannot be lawfully removed under Article 8. In either scenario, the maintenance of the relationship with the parent, or at least the potential for its maintenance, is ensured.

Hopefully, following this judgment by the Court of Appeal, the relevant Home Office guidance will finally be updated. Despite, not one, but two Upper Tribunal judgments to the contrary, it still reads as follows at page 68: “If the departure of the parent or carer would not result in the child being required to leave the UK, because the child will (or is likely to) remain living here with another parent or primary carer, then the question of whether it is reasonable to expect the child to leave the UK will not arise.”

Direct parental care is not necessary

Singh LJ partially agreed with UTJ Plimmer’s approach in SR (Subsisting Parental Relationship – s117B(6)), especially insofar as she derived assistance from the judgment of UTJ Grubb in R (RK) v Secretary of State for the Home Department [2016] UKUT 00031.

However, Singh LJ held that UTJ Plimmer erred in considering that the interpretation given by McFarlane LJ to para. 399 of the Immigration Rules (as it was then) in Secretary of State for the Home Department v VC (Sri Lanka) [2017] EWCA Civ 1967 also applies to the interpretation of section 117B(6)(a).

Essentially, Singh LJ held that “genuine and subsisting parental relationship” does not require “at least some element of direct parental care”. At paragraph 98, he held that words of s.117B(6)(A) are “words of the ordinary English language and no further gloss should be put upon them. Their application will depend on an assessment by the relevant court or tribunal of the facts of the particular case before it. The exercise is a highly fact-sensitive one.”

King LJ offered some further guidance regarding the phrase “genuine and subsisting parental relationship”: she noted that such relationship can be demonstrated between a child and an absent father whether or not there is parental responsibility and whether or not by virtue of a court order. Equally, even where there is a court order permitting direct contact in favour of the absent parent, where said parent is not in fact taking up the contact, or does so unreliably or infrequently, the courts can conclude there is no such relationship.

In agreement with Singh LJ, King LJ stated that the absence of direct contact does not necessarily preclude the existence of a genuine and subsisting parental relationship, and that there are cases where indirect contact is merely a precursor to direct contact. However, at paragraph 111 she noted that where “a Family Court has made a final order limiting contact to indirect contact, particularly when there is no provision for progression to direct contact, the tribunal should look closely at the reasons which led to the court making such a restrictive order.”

In view of that, King LJ highlighted the need for disclosure of information and documents to the Tribunal by the Family Court, a process facilitated by the The Protocol on Communications between the judges of the Family Courts and Immigration and Asylum Chambers of the First tier Tribunal and Upper Tribunal [2013] Fam Law 1197.

Where s.117B(6) applies, that is the end of the matter

On a lesser note, Singh LJ stated in obiter that it was not necessary for the Court to take a view as to whether Parliament was more generous than was required by Article 8 in enacting s.117B(6). The courts and tribunals should give effect to that provision on its correct statutory interpretation, which includes reading it in a way which is compatible with Article 8, pursuant to s.3 of the Human Rights Act 1998.

This dictum was made in the context of the judgment in JG, where it was held that, if s.117B(6) applies, the appeal succeeds. That is because Parliament has stated that the public interest does not require removal in those circumstances, even if removal would otherwise be proportionate under Article 8.

This was not in issue at the Court of Appeal, as both Upper Tribunal judges had correctly relied on the earlier judgment in Treebhawon and Others [2015] UKUT 00674 to conclude that if s.117B(6) applies, there is no need for any further assessment.

Whether more generous than Article 8 or not, where s.117B(6) applies, that is the end of the matter. Parliament has spoken.

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