On 24th October 2018 the Supreme Court gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department  UKSC 53 — read judgment.
This is a major decision which clarifies the approach that the Immigration Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life.
In summary, the Court held that misconduct by the parents — be it criminal offending or immigration-related misdemeanours such as overstaying a visa — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.
However, the judgment is complicated and leaves some questions without clear answers. In this extended article, we will explore the reasoning of the Court and have a look at what has been clarified but also at what might now be plunged into confusion.
The factual scenarios of each of the claimants in these cases differ, but they share an important common feature.
All involve a parent who is not a British citizen but is seeking to remain in the UK on the basis of their relationship with a child.
In many cases, this is the best avenue for an adult to obtain leave to remain in the UK. In a common type of case, it is argued that it would be a disproportionate interference in the child’s private life in the UK and contrary to the state’s duty to have regard to a child’s best interests for the child to be removed.
It is further argued that it would also be a disproportionate interference in the family life between the child and the parent, and contrary to the child’s best interests, for the family to then be split by the removal of the parent.
In this way, it is contended that both the child and the parent should be given leave to remain in the UK.
When a Judge of the First-tier Tribunal is greeted with a set of arguments like this, they do not undertake a freestanding assessment.
Rather, the Government has enacted a series of provisions designed to ensure an outcome which strikes a balance between the Article 8 rights of the individuals (which includes the duty to have regard to the best interests of children) against the general public interest in proper immigration control.
For this purpose, the Judge must apply the rules in paragraph 276ADE (1) (iv) or paragraph 399 of the Immigration Rules, together with the statutory provisions enacted by the Immigration Act 2014 which are found at Part 5A of the Nationality, Immigration and Asylum Act 2002.
But let’s cut through these famously tangled provisions and get to the heart of the matter.
In the ordinary case, if (a) the child is a British citizen or has been resident in the UK for 7 years or more, and (b) it would not be “reasonable” to expect the child to leave the UK, then the child should be given leave to remain under Article 8. Moreover, if the parent has a “genuine and subsisting parental relationship” with that child, then the parent must also be given leave to remain.
But if the parent is a criminal, then the law is somewhat tougher. In that case, for the parent to permitted to remain in the UK, it must be shown that the child is a British citizen or has been resident in the UK for 7 years or more and that the parent has a “genuine and subsisting parental relationship” with that child, and also that the effect of the parent’s removal would be “unduly harsh” on the child.
Seems simple. But as acknowledged by the Supreme Court, these provisions have taken us down a rabbit’s warren of rival interpretations. Keenly fought cases between the Home Secretary and claimants in the First-tier Tribunal, Upper Tribunal and Court of Appeal resulted in the following issue being crystallised:
Should the Tribunal have regard to misconduct by the parent when evaluating the reasonableness of the child’s removal or the question of whether the parent’s removal would be unduly harsh?
The decisions of the lower courts
It had previously looked as though the answer to that question was ‘yes’. In the KO (Nigeria) case, the Upper Tribunal had held that in applying the unduly harsh test in the case of a criminal parent, it was appropriate to take into account the nature and extent of the criminality of the parent.
The idea was that this would enable a proper assessment of the strength of the public interest in removing the parent, which would allow the Judge to come to the right answer as to whether the deportation of the parent was unduly harsh, or merely no harsher than what was properly due.
The Court of Appeal upheld that reasoning on appeal in MM (Uganda) v Secretary of State for the Home Department  EWCA 617.
But the MM (Uganda) decision had ramifications which went beyond cases of a criminal parent.
In MA (Pakistan) v Upper Tribunal  EWCA Civ 705, the Court of Appeal had to address the question of whether parental misconduct in a non-criminal context (e.g. immigration offending such as overstaying a visa) was relevant to the issue of whether it would be reasonable to expect a child to leave the UK.
The Court was unenthusiastic about the idea that such matters should be relevant, because it would seem to involve blaming the child for the sins of their parents. However, it concluded that in light of the decision in MM (Uganda), the non-criminal provisions should be read in harmony with the criminal provisions. Therefore, parental misconduct was held to be relevant to the reasonableness of removing the child.
In order to try and strike a balance between the duty to have regard to the best interests of the child and principle in MM (Uganda), the Court of Appeal laid down a two-stage approach:
First, the Tribunal should consider whether, as a primary consideration, it was in the best interests of the child to remain in the UK. At that stage, parental misconduct should not intrude on the assessment.
Then, in light of that assessment, the Tribunal should consider whether it was nevertheless reasonable, having regard to the public interest, for the child to be removed from the UK.
The Supreme Court’s decision
However, the Supreme Court took a different view. Lord Carnwath, giving the unanimous judgment of the Court, noted that the Supreme Court had previously held in Zoumbas v Secretary of State for the Home Department  UKSC 74 that the provisions which protect the best interests of children in the UK include the principle that
a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent .
He then noted that there was no express requirement in the relevant provisions to have regard to the criminal or non-criminal offending of a parent when evaluating whether the parent’s and/or child’s removal would be disproportionate under Article 8 [16-17].
Lord Carnwath concluded that in a non-criminal context
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. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. 
In other words, the fact of parental misconduct may give rise to circumstances in which the reasonableness of the removal of the child with that parent falls to be assessed, but the misconduct itself does not constitute a reason for that child to be removed.
Similarly, in the criminal context
Once one accepts … that the issue of “reasonableness” under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2) … [On the view of the courts below] the tribunal is asked to decide whether consequences which are deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug-dealer. Quite apart from the difficulty of reaching a rational judicial conclusion on such a question, it seems to me in direct conflict with the Zoumbas principle that the child should not be held responsible for the conduct of the parent. 
Accordingly, the fact of the parent’s criminal offending is already ‘baked into’ the assessment by virtue of the need to apply the more stringent “unduly harsh” test. The Tribunal should not then take into account the nature of the offending when assessing whether the deportation is “unduly harsh” in the given case. Otherwise, this would effectively involve ‘double counting’ of the parent’s offending.
Clarity and unanswered questions
However, in clarifying this question, the Supreme Court has opened up a different issue.
In MA (Pakistan), the Court of Appeal laid down detailed reasoning concerning how a Tribunal should go about assessing whether it would be reasonable to expect a child of 7 years’ residence to be removed from the UK.
In particular, the Court stated that
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. 
The need for the Home Secretary to show “powerful reasons” in order to demonstrate that it would be reasonable to remove a child (and therefore also lawful to remove the parent) has been a powerful safeguard for claimants.
The extent of this protection was made clear by the Upper Tribunal in MT and ET (child’s best interests; ex tempore pilot)  UKUT 88 on 2nd February 2018, where it was stated that what was described as ‘run of the mill’ immigration offending by a parent (overstaying a visa and then making a series of fresh applications for leave to remain) would not come close to providing the “powerful reasons” needed to remove the child (para 34).
MA (Pakistan) became NS (Sri Lanka) in this Supreme Court decision. The Court of Appeal’s judgment has not been overturned and nor has paragraph 49 been disapproved. However, it has also not been positively affirmed either.
It is suggested that the reasoning at paragraph 49 remains good law. If that is correct, then the Supreme Court’s decision will mean that in the non-criminal context, there remains a presumption that a child of 7 years’ residence (or British citizenship) should not be removed from the UK, and moreover the fact that the parent may be an immigration offender is not a matter that the Home Office can rely on when trying to rebut this presumption.
If that is right, the Supreme Court’s judgment will strengthen still further the protection given to children in the UK in respect of their best interests and right to private and family life.
But if I am incorrect and the presumption has not survived, then the proper approach that the Tribunal should take when evaluating a child’s best interests remains at large, and is likely to be fought out still further.
So when it comes to providing clarity to the law in this complicated area: Lord Carnwath giveth, Lord Carnwath taketh away.
For further reading, Free Movement covered the case here.
Jonathan Metzer is a barrister at One Crown Office Row.