Runa v Secretary of State for the Home Department

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires fact-finding followed by one normative question: whether it would be reasonable to expect the child to leave the United Kingdom. It does not create a categorical rule that a child may never be expected to leave where one parent has a right to remain. The assessment focuses on the child, but the relevant background includes the parents’ nationality or immigration status and what is likely to happen to the family unit. The tribunal must not substitute an inquiry into insurmountable obstacles to family life abroad. If the answer is no, removal is not required in the public interest; if it is yes, a residual Article 8 assessment may remain necessary.

The appellant, a Bangladeshi national, married a British citizen and applied for leave to remain as his spouse. Her application was refused because she did not meet the Immigration Rules, including requirements concerning insurmountable obstacles and exceptional circumstances. The First-tier Tribunal allowed her appeal, but the Upper Tribunal set that decision aside, dismissed the underlying appeal, and found that it would be reasonable for the parties’ two British children to leave the United Kingdom with their parents. The Court of Appeal considered the proper interpretation of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 and the approach to Article 8 proportionality.

1. Appeal allowed; remittal. The Upper Tribunal had adopted the wrong approach to section 117B(6). The case was remitted to the First-tier Tribunal for reconsideration in accordance with the Court of Appeal’s judgments.
2. Section 117B(6) does not impose a categorical or hypothetical rule that it is unreasonable to expect a child to leave whenever one parent has a right to remain in the United Kingdom. The statutory question remains fact-sensitive.
3. The tribunal must establish the full relevant factual background. This may include the nationality or immigration status of each parent and what is likely to happen to the family unit if one parent has a right to remain and the other does not. The focus then remains on the child, and the only statutory question is whether it would be reasonable to expect the child to leave the United Kingdom.
4. The question is normative rather than merely predictive. It is wrong to substitute the question whether the children could remain in the United Kingdom with their British citizen father, or whether he could care for them with family support. That approach failed to address the possible disruption of the family unit.
5. The Upper Tribunal also erred by asking whether there were insurmountable obstacles to maintaining family life outside the United Kingdom. That is not the statutory test under section 117B(6), and it is not the correct test even in an ordinary Article 8 proportionality assessment.
6. Section 117B(6) is freestanding and benevolent. The conduct of the parents and other public-interest considerations cannot be taken into account in answering its child-focused question. If the answer is that it would not be reasonable to expect the child to leave, no wider Article 8(2) inquiry is required. If the answer is yes, a residual Article 8(2) proportionality assessment remains possible.

• Court of Appeal (Civil Division) — appeal from the Upper Tribunal allowed; the appeal was remitted to the First-tier Tribunal for reconsideration.
• Upper Tribunal (Immigration and Asylum Chamber) — allowed the Secretary of State’s appeal against the First-tier Tribunal’s decision and dismissed the appellant’s underlying appeal.
• First-tier Tribunal (Immigration and Asylum Chamber) — allowed the appellant’s appeal against the refusal of leave to remain.