JG v The Secretary of State for the Home Department

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a hypothetical assessment. The tribunal must assume that the qualifying child leaves the United Kingdom and decide whether that would be reasonable. The inquiry is engaged even where the child is unlikely, in reality, to leave.

The child’s real-world context remains relevant. It includes the assumption that the parent facing removal will be outside the United Kingdom. Where the statutory conditions are met, section 117B(6) is free-standing: the public interest does not require removal and the Article 8 appeal succeeds. A likely temporary absence while a parent seeks entry clearance may nevertheless make it unreasonable to expect settled children to leave, particularly where it would materially disrupt their education and established life.

The appellant, a Turkish national, appealed against the refusal of her human-rights claim to remain in the United Kingdom with her British partner and their two British children.

The First-tier Tribunal had dismissed the appeal after a hearing in April 2018. The Upper Tribunal set that decision aside in January 2019 for inadequate reasons and re-made the decision.

The appellant had a serious history of overstaying, dishonest visa applications and unlawful re-entry. The evidence nevertheless showed that the children were settled at school in the United Kingdom. The central issue was whether Nationality, Immigration and Asylum Act 2002 section 117B(6) applies only if the children would in fact leave with the appellant, or requires a hypothetical assessment of the reasonableness of their leaving.

1. Appeal allowed. The First-tier Tribunal had made an error of law. Its decision was set aside and the appellant’s human-rights appeal was re-made and allowed.

2. Section 117B(6)(b) asks whether it would be reasonable to expect the qualifying child to leave the United Kingdom. On its ordinary meaning, that question presupposes the child’s departure. The tribunal must therefore assess the reasonableness of that departure even if it finds that the child would probably remain in the United Kingdom in reality.

3. KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53 did not require a different construction. Its real-world analysis means that the reasonableness assessment must proceed on the basis that the parent subject to removal will no longer be in the United Kingdom. It does not add a preliminary requirement that the child be likely or required in fact to leave.

4. Section 117B(6) remains free-standing. If its conditions are satisfied, Parliament has determined that the public interest does not require removal. There is then no public-interest justification for interference with Article 8 rights.

5. On the required hypothesis, it was unreasonable to expect these children to leave. Their temporary departure while their mother sought entry clearance would materially disrupt their settled education and religious and social life. They did not speak Turkish or have a material understanding of life in Turkey. Their best interests, treated as a primary consideration, supported that conclusion.

6. Absent section 117B(6), it would have been proportionate to require the appellant to return to Turkey and make an honest entry-clearance application. Her immigration history was exceptionally poor, and the resulting temporary separation would not have had a disproportionate effect on the family. That alternative conclusion could not displace the statutory outcome under section 117B(6).

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, having set aside the First-tier Tribunal’s decision for an error of law and re-made it.
• First-tier Tribunal: Dismissed the appellant’s appeal following a hearing in Birmingham in April 2018. The decision was set aside because it gave inadequate reasons, particularly concerning the family evidence.