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 EWCA Civ 705
As part of my new role as an Advocate, I have begun dealing with Human Rights and Immigration cases at Tribunals in London. Over the past 8 weeks, I have become quite familiar with some of the cases, and MA Pakistan is definitely one of my favourites. Here’s the summary!
The Court of Appeal was required to determine how the test of reasonableness should be applied under the Immigration Rules r.276ADE(1)(iv) and the Nationality, Immigration and Asylum Act 2002 s.117B(6) in six conjoined appeals concerning the removal of children who had been resident in the UK for at least seven years.
Under the Immigration Rules, only the child could apply for leave to remain, whereas an application under s.117B, which involved consideration of rights under ECHR art.8, could be brought by the parent and the child. In each case, a parent might be entitled to stay with the child in the UK in circumstances where they would not qualify for leave in their own right. Under r.276ADE(1)(iv), a child met the requirements for leave to remain if they had been living continuously in the UK for seven years and it would not be reasonable to expect them to leave. Under s.117B(6), the public interest did not require a person’s removal where (a) they had a genuine and subsisting relationship with a child who satisfied the seven year rule and, (b) it would not be reasonable to expect the child to leave the UK. Two of the appeals (MA and AP) involved an application by a child under the Rules. The remaining four appeals (NS, AR, CW and AZ) involved an application by a parent under s.117B(6).
HELD: (1) The court should approach the question of whether it was reasonable to expect a child to leave the UK under r.276ADE(1)(iv) and s.117B(6) in the same way (see para.13 of judgment).
(2) Section 117B(6) must be read as a self-contained provision in the sense that Parliament had stipulated that where conditions (a) and (b) were satisfied, the public interest would not justify removal. It did not, however, necessarily follow from the fact that the section exhaustively identified all the factors which a court could take into account that wider public interest criteria, including those identified in s.117B(1) to (5), were of no relevance to applications under s.117B(6). That depended on the meaning and application of the term “reasonable” in the context of asking whether it would “not be reasonable to expect the child to leave”. Plainly, the best interests of the child were always highly relevant. Thereafter, the appellants argued for a narrow interpretation: when considering reasonableness, the court must focus only on the position of the child. The secretary of state argued for a wider interpretation: the decision-maker must take into account all other relevant considerations bearing upon the public interest, including the conduct and immigration history of the applicant parents. The court favoured the narrow interpretation. However, that approach was inconsistent with the decision in KMO (section 117: Unduly Harsh: Nigeria), Re  EWCA Civ 450 where the court very much favoured the wider approach when considering the “unduly harsh” concept under s.117C(5), and the court ought not to depart from it. If the court should have regard to the conduct of the applicant and other matters relevant to the public interest under s.117C(5), so it should when considering the question of reasonableness under s.117B(6). Both sections were free-standing provisions and it would not be appropriate to distinguish MM simply because the court had reservations whether it was correct. Accordingly, the appeals would be approached on that wider basis, meaning that the only significance of s.117B(6) was that where the seven year rule was satisfied, it was a factor of some weight leaning in favour of leave to remain being granted, MM applied (paras 14-45).
(3) Even if the court were to apply the narrow test where the focus was on the child alone, it would not follow that leave must be granted whenever the child’s best interests were in favour of remaining: it might still not be unreasonable to require the child to leave. That would depend on a careful analysis of the nature and extent of the links in the UK and in the country where it was proposed they should return, EV (Philippines) v Secretary of State for the Home Department  EWCA Civ 874 applied (paras 46-49).
(4) When considering the best interests of the child in the context of an art.8 evaluation, there was no obligation for a court to approach the matter in any set way. No doubt it would usually be sensible to start with the child’s best interests but ultimately it did not matter how the balancing exercise was conducted provided that the child’s best interests were treated as a primary consideration, FZ (Democratic Republic of Congo) v Secretary of State for the Home Department  UKSC 74,  1 W.L.R. 3690, H v Lord Advocate  UKSC 24,  1 A.C. 413 and R. (on the application of HH) v Westminster City Magistrates’ Court  UKSC 25,  1 A.C. 338 applied (paras 50-59).
(5) Applying those principles to the facts of the instant appeals, the court dismissed the appeals of MA, NS, AR and CW. The appeal of AZ was allowed. The decision in AP was quashed and remitted to the Upper Tribunal for the issues to be determined afresh (paras 60-118).
Appeals allowed in part