NI (Bangladesh) & Ors v Secretary of State for the Home Department

When assessing whether a child’s removal is reasonable, the decision-maker must assess the circumstances in the real world. Where parents have no independent basis for remaining in the United Kingdom and rely on the children’s position, the likely location and circumstances of the parents are relevant. It is ordinarily reasonable for children to be with their parents. A second appeal requires both an arguable point of law and an important point of principle or practice.

The parents sought permission to appeal decisions dismissing their immigration appeal. The Secretary of State had refused leave to remain on 5 June 2014. The First-tier Tribunal dismissed the appeal on 31 March 2015, and the Upper Tribunal dismissed the onward appeal on 6 November 2015.

The children’s appeals were withdrawn after some obtained British citizenship or leave under the ten-year route. The parents nevertheless pursued a renewed oral application for permission to appeal. The central issues were whether the tribunals had wrongly assessed the reasonableness of the children’s return by considering the parents’ relocation and whether excessive weight had been given to public-interest considerations.

1. Application refused. The application was a second appeal. It therefore required an arguable point of law and, in addition, an important point of principle or practice.
2. The reasonableness of a child’s return must be assessed in the real world. It is not necessary to disregard the parents’ relocation. Where the parents have no independent basis for remaining in the United Kingdom and rely on the children’s position, the decision-maker must consider where the parents are likely to be, since it is normally reasonable for children to be with their parents. This was the guidance identified from KO (Nigeria) [2018] UKSC 53.
3. The First-tier Tribunal had considered the family home, the parents’ ability to live and work in Bangladesh, the educational circumstances available there, and possible financial support. The Upper Tribunal was entitled to take the parents’ relocation into account. Both tribunals had addressed whether it was reasonable for the children to return with parents who had no independent right to remain in the United Kingdom.
4. Although the tribunals’ language was not completely clear, they had addressed the relevant circumstances. The alleged excessive emphasis on public-interest considerations did not disclose an arguable error of law with a real prospect of success. The clarification provided by the Supreme Court meant that no important point of principle or practice arose.
5. Order: Application refused.

• Court of Appeal (Civil Division): Renewed oral application for permission to appeal refused.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed on 6 November 2015.
• First-tier Tribunal: Appeal dismissed on 31 March 2015.
• Secretary of State for the Home Department: Leave to remain refused on 5 June 2014.