The meaning of “unduly harsh” in the case of a child
The Supreme Court judgement in the case of KO (Nigeria) and others v SSHD  provides guidance on the meaning of reasonableness and unduly harsh in children cases.
These are key phrases which one would find in section 117B of the Nationality, Immigration & Asylum Act 2002 and is similar to the provision in paragraph 276ADE (1)(vi) of the Immigration Rules and also to section 117(c)(v) of the 2002 Act. Section 117(b)(vi) concerns non-deportation cases. It provides that in the case of a child who is a British citizen or who has been residing in the UK for a continuous period of seven years or more, the public interest does not require removal if it would not be reasonable to expect the child to leave the UK. Paragraph 276ADE(1)(vi) has a similar effect.
The Supreme Court held that the question of reasonableness must be looked at without consideration of the criminal or other misconduct of the parent. The matter has to be looked at from the point of view of the child. The Supreme Court treated section 117(b) and paragraph 276ADE(1)(v) as stand-alone provisions. It rejected the Home Office position that these provisions can be affected by other considerations to do with public interest.
Section 117(c)(v) concerns deportation cases. It provides an exception to the rule that deportation of foreign criminals is in the public interest. The exception applies if the effect on a qualifying child would be unduly harsh. The Court held that this provision is also a stand-alone provision, but the phrase “unduly harsh” requires a more serious impact on the child. The Court states that this does not impose a requirement to go as far as to show very compelling circumstances. This, therefore, overturns the decision of MM (Uganda) and KO (Nigeria), so far as the legal analysis of section 117(c) is concerned.
At OVO Solicitors, we often have to argue the best interests of children, and we welcome the Court’s decision. The UK is a signatory to the UN Convention on the Rights of the Child 1989 which provides in Article 3 that for all actions concerning children, the best interests of the child should be considered a primary consideration. In the past the courts had held that in all immigration decisions that affect children, the child’s best interests must be assessed as a primary consideration that carries substantial weight, but may nevertheless be outweighed by other compelling factors. For example, in the case of ZH (Tanzania) v SSHD, Lady Hale said that the facts of the case showed an obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that where children are involved the best interests of the child must be a primary consideration. This case held that when conducting the best interest assessment, children should not be held responsible for the actions of their parents. This principle was reaffirmed in the case of Zoumbas v SSHD .
The Court of Appeal developed a more restrictive branch of the case law and in the case of EV (Philippines) v SSHD  the Court of Appeal applied ZH (Tanzania) and held that the best interests of the child should be determined by reference to the child alone, without reference to the immigration history or the status of either parent in non-criminal cases. The real test in cases where a child’s parents have no right to remain according to this case is whether it is reasonable to expect the child to follow the parent to the country of origin. The reasonable test was a wide one taking into account all of the circumstances of the case including the conduct of the child’s parents.
2016 saw the case of MM (Uganda) and Anor v SSHD, a deportation case concerning a foreign criminal. Lord Justice Laws held that when considering the harshness of the removal on the deportee’s children or partner, decision-makers must take into account the seriousness of the deportee’s offending and immigration history along with any other relevant circumstances. This is because of the public interest in deporting foreign criminals. MM was applied in the Court of Appeal in the non-criminal case MA (Pakistan) and others v SSHD . MA held that the fact that the child had been in the UK for seven years should be given significant weight by the Tribunal and that leave should be granted unless there are powerful reasons to the contrary. However, the conduct of the parents was still a relevant factor when considering whether or not it would be reasonable for the child to leave the UK.
Then came KO (Nigeria). This judgement concerned four appeals and was the first decision by a court on the operation of the human rights framework in part 5(a) of the 2002 Act. The appellants argued that the conduct of the parents should not be considered when assessing whether it is reasonable for a child to be required to leave the UK or in criminal cases whether deportation of the parents was unduly harsh. The Government argued that the framework required Judges to balance the impact on the child against the public interests in removing the parent. The court rejected the Government’s position.
In the case of children who have been in the UK for seven years, it seems that the correct approach now is for the court to ask whether the parents have lawful immigration status and, in any event, whether it is unreasonable to require the child to leave the UK with the departing parent.
With regard to section 117(c) of the 2002 Act and settled children in criminal cases, it stated that exception to the public interest in deportation of foreign criminals applies to settled children and requires consideration of whether the effect of the deportation is unduly harsh on a settled child. It does not require the decision maker to take into account the relative severity of the parents’ offence, as section 117(c)(ii) might suggest.
What it means for our clients:
- When assessing the best interests of the children affected by an immigration decision, the focus must be on the child alone.
- When considering whether it is reasonable to require the child to leave the UK under the seven years rule, that question should be answered in the family context. If a child’s parents do not have lawful status in the UK and must leave, that fact will be relevant to the question of whether it is reasonable to expect the child to follow them.
- When deciding whether the impact of deportation is unduly harsh on a child, the focus must be on the child. The gravity of the parents’ criminal offending is not relevant at this stage.