KO v Secretary of State for the Home Department

Under paragraph 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, the reasonableness assessment is child-centred. Parental misconduct and criminality are not weighed directly against the child. The parents’ expected location remains indirectly relevant because reasonableness is assessed in the real world.

Exception 2 in section 117C(5) is also self-contained. “Unduly harsh” imposes a substantially higher threshold than ordinary reasonableness. The effect on the child or partner must go beyond the hardship ordinarily inherent in a foreign criminal’s deportation. The tribunal must not balance that effect against the particular seriousness of an offence, nor require the “very compelling circumstances” applicable to sentences of at least four years.

Four linked appeals concerned children affected by immigration removal or deportation decisions. KO and IT were foreign criminals whose cases raised the meaning of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002. NS and others concerned whether it was reasonable for qualifying children to leave the United Kingdom under section 117B(6). Pereira concerned the equivalent reasonableness requirement in paragraph 276ADE(1)(iv) of the Immigration Rules.

The appeals came from three Court of Appeal decisions: [2016] EWCA Civ 617, [2016] EWCA Civ 932 and [2016] EWCA Civ 705. The common question was whether parental misconduct, immigration history or the particular seriousness of a parent’s offence entered directly into the statutory assessment, or whether the assessment focused on the child or partner within the family’s real-world circumstances.

The Supreme Court unanimously dismissed all four appeals. Lord Carnwath delivered the sole judgment, with which Lord Kerr, Lord Wilson, Lord Reed and Lord Briggs agreed.

1. Part 5A of the Nationality, Immigration and Asylum Act 2002 was intended to state the relevant public-interest balance through straightforward statutory rules and to narrow the residual scope for judicial evaluation. In the absence of clear language, those rules should remain consistent with the principle that a child is not to be blamed for a parent’s conduct.

2. Paragraph 276ADE(1)(iv) of the Immigration Rules is directed solely to the child’s position. Section 117B(6) has the same effect. Neither provision imports parental criminality or misconduct as a direct countervailing factor. Reasonableness must nevertheless be assessed in the real world. The parents’ lack of a right to remain is therefore relevant to identifying where they will live, and it will normally be reasonable for a child to accompany them. The provision assists the parent only if it would remain unreasonable for the child to leave on that hypothesis.

3. The exceptions in section 117C are self-contained. For a foreign criminal sentenced to less than four years, Exception 2 asks whether the effect of deportation on the qualifying partner or child would be “unduly harsh”. That is a higher hurdle than reasonableness and requires hardship beyond that necessarily involved when a child faces a parent’s deportation. Section 117C(2) does not require a further balance against the particular offence’s seriousness. Nor does section 117C(5) require “very compelling circumstances”; that additional requirement belongs to section 117C(6).

4. KO’s appeal was dismissed because the Upper Tribunal’s operative assessment treated the separation and economic consequences as no more severe than the ordinary disruption caused by deportation. Its alternative reasoning had applied too low a threshold.

5. IT’s appeal was dismissed. The Court of Appeal had wrongly required offence-specific balancing and very compelling reasons. Nevertheless, the First-tier Tribunal had wrongly treated British citizenship as making relocation outside the European Union legally impossible and had relied inconsistently on an unproved flying phobia. The remittal to the Upper Tribunal was confirmed.

6. NS and others’ appeal was dismissed. The parents’ misconduct mattered because it meant that they had to leave. In that real-world setting, the evidence disclosed nothing making it unreasonable for their children to accompany them.

7. Pereira’s appeal was dismissed. The existing order remitting the case to the Upper Tribunal remained in force, and the reconsideration was to apply the law stated in this judgment.

1. United Kingdom Supreme Court: In KO v Secretary of State for the Home Department [2018] UKSC 53, all four appeals were dismissed. The remittal orders in the IT and Pereira appeals were confirmed.
2. Court of Appeal—KO: In MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, the court upheld the Upper Tribunal’s dismissal of KO’s appeal. The Supreme Court affirmed the result on different reasoning.
3. Court of Appeal—IT: In IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, the court ordered reconsideration because it considered that the tribunals had given insufficient weight to the public interest. The Supreme Court confirmed the remittal, but rejected that reasoning.
4. Court of Appeal—NS and Pereira: The appeals reached the Supreme Court from MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705. The Court of Appeal allowed Pereira’s appeal because the Upper Tribunal had not properly identified his best interests as a primary consideration and ordered a fresh determination.
5. Upper Tribunal: The Upper Tribunal dismissed KO’s, NS’s and Pereira’s claims. It dismissed the Secretary of State’s appeal in IT. The Supreme Court upheld the ultimate dismissals in KO and NS and confirmed fresh consideration in IT and Pereira.