AM (Pakistan) & Ors v Secretary of State for the Home Department

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 is self-contained. If its conditions are met, the public interest does not independently require removal, but wider public-interest considerations may enter through the statutory reasonableness assessment. The same approach applies to paragraph 276ADE(1)(iv) of the Immigration Rules. Seven years’ residence merits significant weight, but does not dictate the outcome; the child’s best interests and the wider immigration context remain relevant. There is no special procedural leniency for public authorities. The Court of Appeal extended time, allowed the appeal and restored the First-tier Tribunal’s dismissal because its evaluative conclusion was open to it and contained no material error.

The Secretary of State appealed against an Upper Tribunal decision which had overturned the First-tier Tribunal’s dismissal of five Pakistani family members’ human-rights appeals and granted them leave to remain. The central issue was whether the reasonableness assessment under section 117B(6) and paragraph 276ADE(1)(iv) was confined to the qualifying children’s circumstances or could include wider public-interest considerations, particularly effective immigration control. The appeal also raised a five-day delay in lodging the appeal. After MA (Pakistan) v Upper Tribunal [2016] EWCA Civ 705, the Secretary of State no longer pursued the challenge to the self-contained nature of section 117B(6).

Extension of time. The Court applied the three-stage approach in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v TH White Ltd [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633: seriousness and significance of the breach, its reasons, and all the circumstances. There is no special rule or leniency for public authorities. The five-day delay was relatively minor, the explanation did not show cavalier disregard, there was no prejudice, and the appeal raised an important public-law issue. Time was therefore extended.

Construction of the statutory and Rules provisions. The Court was bound by MA (Pakistan) [2016] EWCA Civ 705. Section 117B(6) is self-contained. Where its conditions are satisfied, the public interest does not independently justify removal. Wider public-interest considerations, including effective immigration control, may nevertheless be considered through the reasonableness requirement. The reasoning was based on the structural similarity with section 117C(5), as explained through MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617. The same construction applies to paragraph 276ADE(1)(iv); it could not sensibly impose a less demanding approach than the provision enacted by Parliament.

Merits and disposition. The First-tier Tribunal had accepted that the two older children were qualifying children and that the parents had genuine and subsisting parental relationships with them. It recognised the significance of their seven years in the United Kingdom, their schooling and attachments, and their best interests. Although it had referred to the section 117B public-interest considerations in a manner not permitted by MA (Pakistan), it could consider the relevant matters as part of the reasonableness assessment. Its conclusion that it was reasonable for the children to return to Pakistan was rational and open on the evidence. There was no material error of law and no realistic prospect of a different result on reconsideration. The appeal was allowed and the First-tier Tribunal’s decision was restored.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and restored the First-tier Tribunal’s decision: [2017] EWCA Civ 180.
• Upper Tribunal (Immigration & Asylum): Upper Tribunal Judge Freeman overturned the First-tier Tribunal’s decision and granted the applicants leave to remain.
• First-tier Tribunal: Judge Kelly dismissed the family’s appeals on 20 August 2015.