NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953 (24 June 2021)
As to the seven year rule saga, the Court of Appeal has held that in a situation where a child whose parents had no entitlement to leave to remain in the UK applied for leave to remain pursuant to paragraph 276ADE(1)(iv) of the Immigration Rules on the basis that they had seven years' continuous residence and it would not be reasonable to expect them to leave, the starting point is that it would be reasonable to expect them to leave with their parents. Overstayers "NA" and "SB" were a married couple and were Bangladeshi nationals whose children "YS" and "YA" were born in the UK. The family appealed against a decision of the Upper Tribunal upholding the SSHD's refusal of their application for leave to remain in the UK. In April 2018 the family applied for leave to remain. YS had made his claim under paragraph 276ADE(1)(iv) on the basis that he had lived continuously in the UK for at least seven years and it would not be reasonable to expect him to leave. His parents and brother had no entitlement to remain under the rules but contended that their removal would interfere with their rights pursuant to article 8 of the ECHR. The decision-maker refused all four applications. In May 2019, FTTJ Bart-Smith dismissed the appeals and UTJ Stephen Smith subsequently found an error of law in the FTT's decision but re-made it by again dismissing the appeal in November 2019.
The UT decided that while the family's removal would interfere with their article 8 rights the interference was justified in the public interest. The family were granted permission to appeal on the basis that the case gave rise to an issue of general importance in relation to the correct approach to paragraph 276ADE(1)(iv) and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as set out in Part 5A. In order to determine whether an interference with article 8 rights was justified in the public interest, the court/tribunal had to have regard to the terms of section 117B(6), which provided that the public interest did not require the removal of a child who had lived in the UK for more than seven years where it was not reasonable to expect them to leave. UTJ Stephen Smith determined that it was reasonable to expect YS to leave the UK with his parents NA and SB. The decision of the UT was premised on the rejection of the family's argument that in keeping with the judgment of the Court of Appeal in R (MA (Pakistan)) v UTIAC [2016] EWCA Civ 705, it was obliged to proceed on the basis that, absent powerful reasons to the contrary, it would be unreasonable to expect a child who had seven years' residence to leave. The UT judged that the "powerful reasons" doctrine had not survived the Supreme Court decision in KO (Nigeria) v SSHD [2018] UKSC 53, discussed here.
Context
The father, NA, came to the UK in 2005 on a visitor visa and overstayed. The mother, SB, came to the UK as a student in 2009 and overstayed. Both were from Bangladesh and got married in the UK. The parents relied on section 117B(6), which provides that in the case of a person who is not liable to deportation, the public interest does not require his or her removal where the person in question has a genuine/subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the UK. YS was observably such a qualifying child/seven-year child.
The Court of Appeal
Underhill, Singh and Warby LJJ dismissed the appeal. They held that it followed that the UTJ Stephen Smith had been right to conclude that the "powerful reasons" doctrine was no longer good law. They rejected the argument that that it was wrong of the UT to hold that "the powerful reasons doctrine" did not survive KO (Nigeria).
Notably,the Court of Appeal had considered the meaning of section 117B(6) in the light of KO (Nigeria) in two cases, i.e. SSHD v AB (Jamaica) [2019] EWCA Civ 661 and Runa v SSHD [2020] EWCA Civ 514. Although neither was directly concerned with the issue at hand, they did nonetheless provide some clarity. In AB (Jamaica) it was clarified by Singh and Warby LJJ that the essential question underlying the phrase "reasonable to expect" is simply whether it would be reasonable for the child in question to have to leave the UK.
Singh LJ made it clear in Runa that section 117B(6) is not an exhaustive statement of the effect of article 8; if it is not satisfied it does not follow that a proportionality assessment is not required. Rather, it is "a benevolent provision", which produces the effect, in a case where it applies, that the public interest is treated definitively as not requiring the parent's removal: it "can only operate in one way, potentially in favour of an appellant but never adversely to an appellant" – paragraph 32 of Singh LJ's judgment. And Warby LJ made a similar point about section 117C(4) and (5) at paragraph 60 of his judgment in HA (Iraq) v SSHD [2020] EWCA Civ 1176.
It is axiomatic that all immigration decisions affecting a child must treat his or her best interests as a primary consideration. However, it is also true that those interests may be outweighed by the public interest in the removal of the child or its parents as was stated at paragraph 10 of Lord Hodge's judgment of in Zoumbas v SSHD [2013] UKSC 74. Indeed, in MA (Pakistan) Elias LJ himself took the view – at paragraph 54 – that "there is nothing intrinsically illogical in the notion that whilst the child's best interests are for him or her to stay, it is not unreasonable to expect him or her to go". He nonetheless believed that it was the case that that there are powerful reasons why, having regard in particular to the need to treat the best interests of the child as a primary consideration, it may be thought that once they have been in the UK for seven years they should be allowed to stay in the UK and have their position legitimised if it would not be reasonable to expect them to go, despite their undeserving families remaining with them in effect.
In MA (Pakistan), the court decided that it was bound by MM (Uganda) v SSHD [2016] EWCA Civ 617 to hold that in enquiring whether it was reasonable to expect a child with at least seven years' residence to leave the UK, the court or tribunal had to consider all matters bearing on the public interest (the wider approach) rather than focusing on factors relating to the child (the narrower approach). Elias LJ said that if the issue were free from authority he would favour the narrower approach. But MM (Uganda) constituted binding authority in favour of the wider approach. In KO (Nigeria) it was Lord Carnwath's point-of-view at paragraphs 16 and 17 that the reasonableness question must be approached in the same way under both paragraph 276ADE(1)(iv) and section 117B(6) and that Elias LJ's narrower approach in MA was to be preferred and so MM (Uganda) was over-ruled because both provisions are concerned only with "what is 'reasonable' for the child", and accordingly that the conduct of the parents is irrelevant. But looking at SA (Bangladesh) v SSHD 2017 SLT 1245 and EV (Philippines) v SSHD [2014] EWCA Civ 874, decided in the context of section 55 of the Borders, Citizenship and Immigration Act 2009, and the relevant IDI guidance, Lord Carnwath also said:
18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them.
Lord Carnwath further said that to the extent that Elias LJ may have said otherwise in MA (Pakistan) paragraph 40, he would respectfully disagree as he found nothing in statute to suggest that reasonableness is to be considered otherwise than in the real world in which the children find themselves. Examining the controversial segments of Lord Carnwath's judgment, Underhill LJ held that:
26. So far as the structure of the judgment is concerned, paragraphs 18-19 are a qualification to paragraphs 16-17: that is why they start "on the other hand". At the risk of spelling it out over-laboriously, Lord Carnwath's point is that, notwithstanding his conclusion that the parents' conduct is not material as such, to the extent that it has led to their not having leave to remain it will still have been "indirectly" material to the reasonableness question because: (a) the reasonableness question has to be considered on the "hypothesis" that the parents will have to leave (that is the so-called "real world" point supported by the citation of SA (Bangladesh) and EV (Philippines)), and (b) "it will normally be reasonable for a child to be with [their parents]".
The Court of Appeal noted that at paragraph 51 of KO (Nigeria) it was clearly held by the Supreme Court that the tribunal judge correctly directed himself as to the wording of the subsection. The parents' conduct was relevant in that it meant that they had to go from the UK and it was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain here. However, notably in a context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the judge to suggest that that would be other than reasonable. The italicised words showed that Lord Carnwath was taking as his starting-point the "natural expectation" that a child would go with the parents, subject of course to evidence showing that it would not be reasonable for him or her to be expected to do so. Lord Carnwath's reference to the IDI (at the start of paragraph 18) was broadly to the same effect, since that said that "it will generally be reasonable to expect a child to leave the UK with their parent(s)". Accordingly, in light thereof, Underhill LJ held that:
28. The upshot is that the effect of Lord Carnwath's reasoning in KO (Nigeria)is that, even on the narrower approach, in a case falling under the seven-year provision where neither parent has leave to remain the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the qualifying child to leave the UK with their parents. That is necessarily inconsistent with the so-called "powerful reasons doctrine" apparently endorsed by Elias LJ in MA (Pakistan). Although Lord Carnwath does not specifically spell that out, that is unsurprising since he had in paragraph 14 of his judgment made it clear that he was going to side-step detailed commentary on the earlier case-law and propose a more straightforward approach.
29. It follows from that analysis that the Upper Tribunal Judge was right to reject the submission that "the powerful reasons doctrine" remained good law: to put it more plainly, the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain.
30. It is important, however, to emphasise that the approach approved by Lord Carnwath in KO (Nigeria) does not provide for a presumption in the opposite direction. It represents no more than a common-sense starting-point, adopted for the reasons given at paragraphs 18-19 of his judgment.
Underhill LJ held that it remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents. If the conclusion of the evaluation is that this would not be reasonable, then the "hypothesis" that the parents will be leaving has to be abandoned and the family as a whole will be entitled to leave to remain: in the case of a qualifying child that will be under paragraph 276ADE (1); in the case of the parents it will be under article 8, applying section 117B (6); and in the case of any non-qualifying child it will derive from the fact that the parents have leave. The SSHD acknowledged that in that evaluation the fact that the child had been in the UK for more than seven years would be a material consideration.
The court noted the SSHD's submission that the seven-year provision is, as states in the case of Runa, a one-way provision which, if it is satisfied, definitively answers the public interest question in favour of the child, and his or her parents, without the need to perform undertake a general proportionality exercise. Accordingly, other considerations weighing in favour of removal (such as the parents's conduct) are excluded, as the endorsement in KO (Nigeria) of the "narrower approach" confirms. Underhill LJ added that is true that that benefit may be rather watered down by Lord Carnwath's further observations but it is not eliminated.
Comment
The family argued that it was their case in the FTT that their return to Bangladesh would cause difficulties and disruption for their children, and particularly for YS, a qualifying child/seven-year child, who suffered from some medical problems. But both the FTT and UT concluded that those difficulties were not such that it would be unreasonable to expect YS to return or to make his removal otherwise disproportionate. Those conclusions were not challenged except on the specific basis that it was an error of law for the UT to hold that the powerful reasons doctrine did not survive KO (Nigeria) and nothing more about them needed to be said.
The outcome in this case is a reminder that after many years of litigation and after the KO (Nigeria) judgment given by the UK Supreme Court more than two-and-a-half years ago, there is still quite a lot of uncertainty about the so-called "seven year rule" and earlier (controversial) authorities such as EV (Philippines) and SA (Bangladesh) continue to hold the field to a large extent.
The result is that if a child whose parents had no entitlement to leave to remain in the UK applied for leave to remain on the basis that they had seven years' continuous residence and it would not be reasonable to expect them to leave, the starting point is that it would be reasonable to expect them to leave with their parents.