The stream of case law on Parliament's new statutory human rights framework for Article 8 immigration cases has disgorged another important but unhelpful decision: MA (Pakistan) and others v Secretary of State for the Home Department [2016] EWCA Civ 705.
MA (Pakistan) concerned the '7-year rule' – a concession that allows for overstayers (who are not subject to deportation) to remain in the UK if they are the parents of certain children who have lived in the UK for at least 7 years or who are British citizens. In its current form, the 'rule' is dispersed across three different provisions which allow both parents and children to benefit from it. [1]
The central issue in MA (Pakistan) was: what factors should Judges consider when deciding whether it would is reasonable to expect such a child to leave the UK?
The disappointing answer, which I suspect should be tested in the Supreme Court in the near future, is effectively: "it's a free-for-all".
Judges may consider the conduct and immigration histories of parents when deciding whether it is reasonable to expect children to leave the UK. Where a child has established 7-years residence, that will only be a "a factor of some weight leaning in favour of leave to remain being granted" (§ 45) not an automatic 'win'.
The case law appears to be coming full-circle as the Court approves the approach adopted in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 at §§ 34 to 37. That case pre-dates Parliament's new statutory human rights framework.
Among the debris are some mildly encouraging remarks about the weight to be attached to the children's interests if the 7-year rule is met. At § 49, the Court says:
"the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary."
Judges should allow for the particular strength of both of these factors (§ 116).
However, these glimmers seem to be snuffed out when the Court turns to one of the particular cases and states:
"It may be reasonable to require the child to leave where there are good cogent reasons, even if they are not compelling." (§ 73)
The current 7-year rule imposes a lower threshold on the Secretary of State to justify refusing a child leave to remain after 7 years' continuous residence than the one which was in force at the time of the Upper Tribunal decision in Azimi-Moayed (Decisions Affecting Children: Onward Appeal) [2013] UKUT 00197 (IAC), which required "compelling reasons".
After reading this judgment I genuinely don't have a clue what the new threshold is. It's variously described as requiring reasons that are:
• "good" (§ 103);
• "good [and] cogent" (§ 73); or
• "powerful" (§ 49).
It's fluid, apparently…
How did we get here?
Well.
The judgment starts off in promising fashion, commenting on one manifestation of the 7-year rule, that:
"there can be no doubt that section 117B(6) [of the 2002 Act] must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal" (§ 17).
This has been the assumption of many practitioners, including me. And the Upper Tribunal was of the same mind in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC) (§§ 18 to 22). Regrettably, the Court of Appeal does not cite this case in its decision and backtracks from its initial stance.
Lisa Giovannetti QC for the Secretary of State argued that the approach adopted under the harsher provisions in deportation cases should apply to non-deportation Article 8 cases. She drew on the Lawtel summary of the Court of Appeal's recent decision in MM (Uganda) & Anor v Secretary of State for the Home Department [2016] EWCA Civ 450, a deportation case which concerned the related but distinct factors in section 117C of the 2002 Act. (I've written before about that decision here).
The Court of Appeal agreed with the Secretary of State's submissions and have chosen to water-down an otherwise clear exception to the public interest in removing persons from the UK (as found in section 117B(6) of the NIAA 2002).
How does this square with the principle that children should not suffer the sins of their parents?
The Court separated two issues: the best interests of the child and whether it is reasonable to expect them to leave the UK. When considering the best interests of the child, the conduct of parents is irrelevant (in keeping with the Supreme Court cases of ZH (Tanzania) and Zoumbas). However, when considering the issue of reasonableness, wider public interest factors may be weighed in the balance, including the conduct and immigration statuses of parents (§ 45).
In my view, this is an artificial distinction, as best interests and reasonableness are often so intertwined as to be inseparable. If the end result of a Judge's analysis is that children are being punished for the sins of their parents, that does not appear to uphold the UK's international obligations on child rights and respect for the right to family life.
In so deciding, the Court makes some rather unflatteringly references to undeserving parents "piggy-backing" on the rights of their children…
On a less controversial note, the Court observed that while Part 5A only applies to Courts and Tribunals, "it would be bizarre for [the Secretary of State] to depart from Parliament's view of the public interest as reflected in the legislation, and if she were to do so in a manner prejudicial to the individual, it would simply invite appeals" (§ 15). This accords with the recommendation of the Upper Tribunal in Dube (ss.117A-117D) [2015] UKUT 00090 (IAC) at § 22.
Lastly, the Court also holds that Judges will only exceptionally make an error of law if they decide not to adjourn cases in order to obtain better evidence regarding a child's best interests (see §§ 59 and 113). This restricts the more broadly laid out principles in the Upper Tribunal case of MK (Sierra Leone)) v Secretary of State for the Home Department [2015] UKUT 00223 (IAC).
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[1] Certain children may claim under the private life provision in paragraph 276ADE(1)(iv) of the Immigration Rules. Certain parents may claim under Section EX.1.1(a) of Appendix FM of the Rules and section 117B(6) read with 117D of the Nationality, Immigration and Asylum Act 2002 ('NIAA 2002').