Satinder Kaur v The Secretary of State for the Home Department

In an Article 8 proportionality assessment, a child’s best interests are a primary consideration and should normally be assessed before the balancing exercise. That assessment must focus on the child and must not be reduced by parental immigration misconduct. The misconduct may nevertheless be weighed later on the public-interest side of the balance and may outweigh the child’s interests.

Nationality, Immigration and Asylum Act 2002, Part 5A did not displace that approach. The statutory direction to give little weight to private life formed during unlawful or precarious residence is not a rigid or uniform measurement. It permits a fact-sensitive assessment, subject to Parliament’s strong statement of the public interest in effective immigration control.

The Secretary of State refused the appellant, an Indian national and mother of two young children, leave to remain on Article 8 grounds. The First-tier Tribunal dismissed her appeal.

On appeal, the Upper Tribunal first rejected a ground alleging that the First-tier Tribunal had conflated the definition of a qualifying child in section 117D(1) with the reasonableness question in section 117B(6) of the Nationality, Immigration and Asylum Act 2002. It then permitted an amended ground alleging that the First-tier Tribunal had wrongly treated the children’s precarious status as penalising them for their parents’ conduct.

The central issue was whether the First-tier Tribunal’s treatment of the children’s interests, parental immigration history and the statutory public-interest considerations disclosed an error of law.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its decision dismissing the Article 8 appeal was affirmed.

2. Section 117B(6) requires a two-stage analysis. The tribunal must first determine, by section 117D(1), whether the child is a qualifying child. Only if that condition is met does it decide whether it would be unreasonable to expect that child to leave the United Kingdom. The First-tier Tribunal had understood and applied those distinct stages.

3. The seventh principle in Zoumbas v SSHD [2013] UKSC 74 does not make a child’s best interests decisive. A child must not be blamed for parental conduct, so parental illegality, overstaying or other misconduct must not enter the distinct assessment of the child’s best interests. Those interests should normally be assessed at the outset and have a free-standing character.

4. Once the proportionality balance is undertaken, parental immigration misconduct may properly be considered as part of the public interest in maintaining effective immigration control. A conclusion requiring the family to leave the United Kingdom may therefore lawfully prejudice a child without amounting to blame of the child, provided the child’s best interests were first properly assessed.

5. Part 5A of the Nationality, Immigration and Asylum Act 2002 has not displaced that principle. The directions in sections 117B(4) and (5) to give little weight to certain private life are normative and fact-sensitive. “Little weight” is neither no weight nor a fixed quantity; it operates across a spectrum, while remaining subject to the requirements of Article 8.

6. Here, the First-tier Tribunal assessed the children’s circumstances, their ties to the United Kingdom and the reasonableness of their accompanying their parents. It did not permit parental misconduct to intrude into its best-interests assessment. Its subsequent proportionality balance was lawful and adequately reasoned.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and affirmed the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appellant’s appeal against the Secretary of State’s refusal of leave to remain on Article 8 grounds.