Secretary of State for the Home Department v AB (Jamaica) & Anor

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 applies whenever its stated conditions are met. Its application does not depend on a realistic possibility that the qualifying child will leave the United Kingdom. The single statutory question is whether it would be reasonable to expect the child to leave.

A genuine and subsisting parental relationship is an ordinary, highly fact-sensitive concept. It does not invariably require direct parental care. Where contact is limited by a Family Court order, the tribunal should examine the nature of the contact and the reasons for the restriction.

Section 117B(6) concerns justification under article 8(2). The claimant must first establish an interference of sufficient gravity to engage article 8.

The Secretary of State appealed against two Upper Tribunal decisions allowing human rights appeals by parents of British children. AB maintained frequent direct contact with his son. AO was permitted only limited written contact with his son under a final Family Court order.

Both tribunals treated section 117B(6) of the Nationality, Immigration and Asylum Act 2002 as determining the public interest where its conditions were satisfied. The common issue was whether section 117B(6)(b) applies when the child is not realistically likely to leave the United Kingdom. AO’s appeal additionally concerned the article 8 engagement threshold and whether his limited indirect contact amounted to a genuine and subsisting parental relationship.

1. Disposition. The Secretary of State’s appeal concerning AB was dismissed. Her appeal concerning AO was allowed on Grounds 1, 2 and 4, but Ground 3 was dismissed. Singh LJ gave the principal judgment. King and Underhill LJJ agreed.

2. Section 117B(6)(b) asks one question: whether it would be reasonable to expect the qualifying child to leave the United Kingdom. The court must ask that question even where everyone accepts that the child will remain. In that situation the answer is simply no. The Secretary of State’s proposed preliminary inquiry into whether the child was realistically likely to leave would divide qualifying children into categories and insert words which Parliament had not enacted. The Court approved the ultimate construction adopted in JG v Secretary of State for the Home Department [2019] UKUT 00072 (IAC), while declining to endorse all its analysis of the word “expect”.

3. The public interest question defined by section 117A(3) is confined to justification under article 8(2), corresponding to the fourth and fifth questions in Razgar [2004] UKHL 27. Where section 117B(6) applies, Parliament has determined that the public interest does not require removal. The contrary approach in MM (Uganda) [2016] EWCA Civ 617 had been displaced by KO (Nigeria) [2018] UKSC 53. AB’s appeal had therefore been correctly allowed by the Upper Tribunal.

4. Article 8 must nevertheless be engaged before the justification question arises. AO’s removal would not materially impede the permitted written contact. Nor would his son’s awareness that AO lived in Nigeria constitute an interference of sufficient gravity. The First-tier Tribunal’s contrary conclusion was not reasonably open to it, and the Upper Tribunal had independently erred by failing to address that threshold question.

5. The expression “genuine and subsisting parental relationship” in section 117B(6)(a) bears its ordinary meaning and requires a highly fact-sensitive assessment. Direct parental care is not an essential legal requirement. VC (Sri Lanka) [2017] EWCA Civ 1967 concerned materially different wording governing deportation and did not justify adding that requirement to section 117B(6)(a).

6. Limited indirect contact does not inevitably preclude the statutory relationship. A tribunal must, however, examine why the Family Court restricted contact, particularly where a final order makes no provision for progression to direct contact. AO’s contact existed to support his son’s understanding of his identity, rather than to maintain their relationship. The Upper Tribunal could not reasonably find the required parental relationship. Relevant Family Court documents should ordinarily be obtained through the applicable disclosure procedure.

• Court of Appeal: Dismissed the Secretary of State’s appeal concerning AB. Allowed her appeal concerning AO on Grounds 1, 2 and 4, while dismissing Ground 3.
• Upper Tribunal (Immigration and Asylum Chamber): In AB’s case, set aside the First-tier Tribunal decision and allowed the human rights appeal. In AO’s case, set aside the First-tier Tribunal decision but remade it with the same result, allowing the appeal.
• First-tier Tribunal: Dismissed AB’s appeal. Allowed AO’s appeal under article 8.