KO v Secretary of State for the Home Department

The Supreme Court interpreted Part 5A of the Nationality, Immigration and Asylum Act 2002 and paragraph 276ADE(1)(iv) of the Immigration Rules. It held that the tests in section 117B(6) and paragraph 276ADE(1)(iv) are focused on the position of the qualifying child: the tribunal must assess whether it is reasonable for the child to leave the United Kingdom, and should not import a direct balancing exercise against the parent’s immigration history or criminality. Section 117C(5)’s test of whether deportation would be "unduly harsh" establishes a higher, self-contained threshold applying to foreign criminals; it does not require balancing the child’s interests against the relative seriousness of the parent’s offence beyond the distinctions expressly drawn by the section (for example by reference to sentence length).

The Court emphasised the statutory aim of narrowing discretionary judicial evaluation, and the child-centred approach consistent with the best interests principle and Zoumbas. Where parental conduct leads to the parent having no right to remain, that fact may be the factual background against which a tribunal assesses whether it is reasonable for the child to leave with the parent, but parental misconduct is not to be used to blame the child or as a direct balancing factor under the child-focussed tests.

Background and parties: These linked appeals concerned interpretation of the statutory scheme introduced by section 19 of the Immigration Act 2014 (Part 5A of the Nationality, Immigration and Asylum Act 2002) and a related Immigration Rules provision, paragraph 276ADE(1)(iv). The appellants were migrants with children who were British citizens or had seven years' continuous residence; the Secretary of State resisted leave or sought deportation. The appeals reached the Supreme Court from decisions in the Upper Tribunal and the Court of Appeal (see appellate history).

Nature of the claims: The appeals raised challenges to decisions under article 8 ECHR and the domestic statutory scheme. The principal relief sought was to overturn refusals to grant leave or revocations of deportation where the presence of qualifying children in the UK was argued to bar removal or require revocation.

Issues framed: The court framed three core questions: (i) under section 117B(6) and paragraph 276ADE(1)(iv) should tribunals assess only the child’s position when asking whether it is reasonable for the child to leave the UK; (ii) under section 117C(5) does the test that deportation would be "unduly harsh" require a balancing exercise that takes explicit account of the parent’s criminality or the public interest in deportation; and (iii) how should the statutory provisions be read in light of the stated policy aim to promote consistency and limit judicial discretion?

Reasoning and subsidiary findings: The court adopted a textual and purposive approach, observing the legislative aim of producing clearer, narrower guidelines and the established principle that children should not be blamed for parents' misconduct (Zoumbas). It held that paragraph 276ADE(1)(iv) and section 117B(6) are child-focussed and do not import a general balancing exercise against parental conduct; parental conduct is only relevant insofar as it creates the factual context (for example, parents having no right to remain). Section 117C(5) imposes a higher, evaluative threshold of "unduly harsh" applicable to foreign criminals but is self-contained: although the statute recognises that the more serious the offence the greater the public interest in deportation, the subsection does not require tribunals to perform a comparative balancing of the severity of offences beyond the structure already set by the section (notably the different rules for sentences below and above four years). The court applied these interpretative conclusions to the individual appeals, dismissing the main appeals while confirming remittal in cases where factual re-evaluation was required.

Procedural/contextual comment: The court noted the confusion and divergent approaches in tribunal and appellate decisions since the statutory changes and emphasised the desirability of resolving narrow points of construction promptly, including by use of procedural routes where appropriate.

All appeals were dismissed. The Supreme Court held that paragraph 276ADE(1)(iv) and section 117B(6) focus on the position and best interests of the qualifying child and do not permit importing a direct balancing of the child’s interests against the parent's immigration history or criminality; section 117C(5) requires a higher self-contained evaluative test of whether deportation would be "unduly harsh" but does not mandate a comparative balancing of offence seriousness beyond the distinctions the statute itself makes. Where tribunals need to re-evaluate facts in light of that legal approach, remittal was appropriate.

On appeals from decisions in the Court of Appeal and Upper Tribunal, including MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932 and MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705. Several matters had been considered by the Upper Tribunal (notably KO before UT Judge Southern) and then the Court of Appeal before reaching the Supreme Court.