SC (Bangladesh) v Secretary of State for the Home Department

In an Article 8 appeal, a child’s best interests are a primary consideration and must be assessed separately from parental misconduct, but they need not be addressed before every other factor. The tribunal must conduct an orderly proportionality assessment. The Nationality, Immigration and Asylum Act 2002 little-weight provisions are normative guidance, not a rigid scale. Limited flexibility remains for exceptional cases with particularly strong private-life features. Sections 117B(2) and (3) do not make English fluency or financial independence positive factors for an appellant. They identify public-interest considerations which may support interference where those qualities are absent. Any error is immaterial where the evidence permits only proportionate removal.

The appellant, a Bangladeshi national, challenged removal after the First-tier Tribunal rejected his asylum claim and dismissed his Article 8 appeal. The tribunal found that he, his wife and their two infant children could live safely in Bangladesh with extended-family support. The Upper Tribunal upheld the decision and dismissed the appeal in September 2016.

In the Court of Appeal, the appellant argued that the First-tier Tribunal had mishandled the children’s best interests and the public-interest considerations in section 117B of the Nationality, Immigration and Asylum Act 2002, including the weight given to private life and the significance of English fluency and financial independence. The central questions were whether the tribunal had made an error of law and, if so, whether it was material.

The appeal was dismissed. Hamblen LJ gave the judgment, with Henderson LJ and McCombe LJ agreeing. The Court held that the First-tier Tribunal made no material error of law. In any event, the evidence permitted only dismissal of the Article 8 appeal.

1. The children’s best interests had been considered independently of their parents’ misconduct. The First-tier Tribunal separately found that the children’s interests were served by remaining with their parents, including in Bangladesh, where they would have family support and access to education.
2. Under Zoumbas v SSHD [2013] UKSC 74, the best interests of children are a primary consideration and must be addressed in an orderly manner. That principle does not require them to be considered first. The First-tier Tribunal had in fact begun its analysis with the children’s best interests.
3. The complaint that the statutory little-weight provisions were applied rigidly did not arise because the First-tier Tribunal had not referred to section 117B(4) or (5), or to the phrase little weight. In any event, Rhuppiah v SSHD [2018] UKSC 58 confirmed that Part 5A of the Nationality, Immigration and Asylum Act 2002 does not impose a strait-jacket. Section 117A(2)(a) preserves limited flexibility for exceptional cases with particularly strong private-life features. No such features existed here.
4. The issue concerning English fluency and financial independence did not arise on the facts, since the First-tier Tribunal found that neither appellant was fluent or financially independent. In any event, Rhuppiah endorsed the approach in AM (s117 B) Malawi [2015] UKUT 260: sections 117B(2) and (3) do not require those matters to count positively in an Article 8 appellant’s favour.
5. The children were infants, had only Bangladeshi nationality and had no significant private life outside their relationship with their parents. Their best interests and the family’s limited private life could not outweigh the public interest in immigration control and the family’s unlawful immigration position. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): On 11 December 2018, dismissed the appeal from the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): In September 2016, dismissed the appeal against the First-tier Tribunal’s decision and refused permission to appeal.
• First-tier Tribunal: On 27 April 2016, rejected the asylum claim and dismissed the appeal against removal and under Article 8.