MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor

When deciding whether it is reasonable to expect a qualifying child to leave the United Kingdom, the tribunal may consider the wider public interest, including the parents’ immigration history. Seven years’ residence nevertheless carries significant weight. It establishes a starting point that leave should be granted unless powerful reasons point the other way.

The child’s best interests are a primary consideration, but they do not determine reasonableness automatically. They must be assessed by reference to the child alone, without attributing the parents’ precarious status or misconduct to the child. No prescribed sequence governs the proportionality assessment, provided those interests receive proper weight. A tribunal may exceptionally be required to obtain further information or adjourn where proceeding would be unfair or irrational.

Six linked appeals concerned children who had lived in the United Kingdom for at least seven years. MA and AP relied on Paragraph 276ADE(1)(iv) of the Immigration Rules. The remaining families relied on article 8 and Section 117B(6) of the Nationality, Immigration and Asylum Act 2002.

The First-tier Tribunal or Upper Tribunal had treated removal as reasonable in each case, although the circumstances varied. They included parental immigration misconduct, a child with autism who depended upon specialist support, and a teenager who wished to continue his education in the United Kingdom. MA reached the court through judicial review of the refusal of permission to appeal.

The common question was how reasonableness should be assessed once a child had completed seven years’ residence. Further issues concerned the weight and sequencing of the child’s best interests and whether a tribunal must obtain additional evidence before deciding those interests.

1. Disposition. The appeals of MA, NS, AR and CW were dismissed. AZ’s appeal was allowed and the family’s underlying appeal was allowed. AP’s appeal was allowed, the Upper Tribunal’s decision was quashed and the case was remitted for a fresh determination.

2. Section 117B(6) is self-contained in the sense that, once its conditions are satisfied, the public interest cannot otherwise justify removal. The relevant questions are whether the applicant is liable to deportation, has a genuine and subsisting parental relationship with a qualifying child, and whether it would be unreasonable to expect that child to leave the United Kingdom.

3. Following MM (Uganda) [2016] EWCA Civ 450, however, the reasonableness criterion permits consideration of the wider public interest, including the parents’ conduct and immigration history. The same construction applies to Paragraph 276ADE(1)(iv). The court expressed reservations about that construction but regarded itself as bound by MM (Uganda).

4. Seven years’ residence must receive significant weight. It is relevant both to the strength of the child’s connections and as a starting point that leave should be granted unless powerful reasons point the other way. The required reasons need not be “compelling”; that formulation sets the threshold too high.

5. A child’s best interests are a primary consideration but do not dictate the reasonableness decision. They must first be identified through a careful examination of the child’s circumstances. The assessment excludes blame for parental misconduct and does not treat the child’s status as precarious merely because the parents’ status is precarious. Parental conduct may nevertheless weigh separately in the public-interest balance.

6. No particular sequence is legally mandatory in the proportionality assessment. It will usually be sensible to identify the child’s best interests first, but the essential requirement is that they are properly assessed and treated as a primary consideration.

7. An applicant normally bears responsibility for supplying the evidence needed to assess a child’s interests. Exceptionally, a tribunal may have to make enquiries or adjourn. Failure to do so is an error of law only where it is irrational or causes unfairness.

8. AZ’s autistic child faced overwhelming and permanent harm if removed, so only one conclusion was legally open: departure was unreasonable. AP’s tribunal had failed to identify his best interests, accord primary weight to them or give proper weight to seven years’ residence. Its decision therefore required reconsideration.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 705, dismissed the appeals of MA, NS, AR and CW, allowed AZ’s appeal and substituted a decision allowing the underlying appeal, and allowed AP’s appeal and remitted it to the Upper Tribunal.

2. High Court: Nicol J refused MA permission to seek judicial review of the Upper Tribunal’s refusal of permission to appeal.

3. Upper Tribunal: Refused MA permission to appeal; dismissed the joined appeals of NS, AR and CW; remade and dismissed AZ’s appeal; and set aside the First-tier Tribunal’s decision in AP before dismissing his appeal.

4. First-tier Tribunal: Dismissed MA’s and AZ’s appeals. It initially allowed AP’s appeal under Paragraph 276ADE(1)(iv), but did not address reasonableness.