KO (Nigeria) v SSHD 2018

16 Sep 2019

In KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53, the Supreme Court rules on the relevance of parental misconduct when assessing “reasonableness” and “undue harshness” for “qualifying children”.


The Supreme Court dismissed all the appeals. However Lord Carnwath overruled earlier tribunal and Court of Appeal authority on a point of interpretation of Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the Act”): when determining whether it is “reasonable” to expect a child to leave the UK with a parent under section 117B of the Act, or whether it would be “unduly harsh” on a child if a parent where deported under section 117C of the Act, the tribunal is only concerned with the position of the child and not the parent’s immigration history and conduct. It rejected the Secretary of State’s argument that what was “reasonable” or “unduly harsh” involved wider public interest factors in favour of removal or deportation. Lord Carnwarth acknowledged two presumptions at the outset: the rules were intended to be consistent with the general principles relating to the “best interests” of children and with the principle that a child must not be blamed for the conduct of a parent (Zoumbas v Secretary of State for the Home Department [2013] UKSC74, [2013] 1 WLR 2690).

Lord Carnwath regretted that Part 5A of the Act, which had been intended to provide clear guidelines and limit the scope of judicial evaluation, had been the cause of so much disagreement amongst judges. He criticised the Upper Tribunal for departing from earlier tribunal authority and creating conflicts at the tribunal level.  He ended his judgement by encouraging the use of the “leapfrog” appeal procedure applicable for appeals directly from the Upper Tribunal straight to the Supreme Court for comparable cases that raise relatively narrow points of construction in relation to important and contentious areas of law.


Part 5A applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s Article 8 rights.  The court or tribunal must establish whether any interference with a person’s Article 8 rights is proportionate by reference to the public interest considerations set out in this Part.

Three of these appeals related to sections 117B and 117C of Part 5A of the Act and, in particular, the treatment of “qualifying children” in those sections. A “qualifying child” is one who is under 18 and who is either a British citizen or has lived in the UK for a continuous period of seven years or more. The fourth appeal raised a related issue under Paragraph 276 ADE(1)(iv) of the Immigration Rules.

Section 117B (6) of the Act – the test for those who are not liable to deportation


Section 117B lists the considerations the court should have regard to when assessing the public interest question in all cases. Section 177B(6) states:

“(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and

(b)it would not be reasonable to expect the child to leave the United Kingdom.”

The appellants’ case was that in determining whether it is reasonable to expect a child to leave the UK with a parent the tribunal is concerned only with the position of the child, not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal.

Lord Carwath found that S117B(6) is free standing and there is “nothing in the subsection to import a reference to the conduct of the parent”. The IDI guidance makes no reference at all to the parent’s criminality or immigration record.

However, Lord Carnwath endorsed the approach in EV (Philippines) v Secretary of State for Home Department [2014] EWCA Civ 874 where the question of reasonableness was considered on the facts as “they are in the real world”. It is inevitably relevant in the context of section 117B to consider where the parent or parents are expected to be, since it will usually be reasonable for the child to be with them. The parent’s immigration record, therefore, becomes “indirectly material” to the question of reasonableness.


In the appeal of NS, the wording of Upper Tribunal Judge Perkin’s decision was open to the interpretation that the “outrageousness” of the parents’ behaviour, in trying to circumvent the Immigration Rules, was relevant to the assessment of whether it was reasonable for the children to leave the UK.  Lord Carnwath found that, read in its full context, UTJ Perkins had correctly directed himself and had not in fact considered the “outrageousness” of the parent’s behaviour when assessing the reasonableness of the children leaving, save for acknowledging that the parents had to leave the country because of their conduct. As both parents had no settled status, and were therefore required to leave the country, it was the natural expectation that the children would go with their parents and there was nothing in the evidence to suggest that this would be unreasonable.


Paragraph 276 ADE(1)(iv) of the Immigration Rules


Paragraph 276 ADE(1)(iv) sets out the “Requirements to be me by an applicant for leave to remain on the grounds of private life”. The requirements are that the applicant is under 18, has lived continuously in the UK for 7 years and that it would “not be reasonable to expect the Applicant to leave the UK”.

Similarly to the provision under S117B(6) Lord Carnwath found that this paragraph was directed solely at the position of the child. Unlike the predecessor policy, known as DP5/96, there is no requirement to consider the criminality or misconduct of a parent as a balancing factor when assessing whether it would be ‘reasonable’ to expect the child to leave the UK.


There was no proper discussion of the relevant case of AP because it was, in any event, being remitted to the Upper Tribunal for a fresh determination.

Section 117C of the Act – the test for those facing deportation


Section 117C lists the issues the court should consider when assessing the public interest question in cases involving foreign criminals, defined broadly as non-British citizen sentenced to 12 months or more in prison (or a “persistent offender” or an offender that committed an offence that caused “serious harm”).

Section 117C(2) states that the deportation of foreign criminals is in the public interest and the more serious the offence committed by a foreign criminal, the greater the public interest in deportation of the criminal. Section 117C differentiates between criminals who have been sentenced to four or more years and those with only lesser sentences. For the latter, the public interest requires deportation unless one of two exceptions applies. Section 117C(5) contains the second exception:

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

The Secretary of State’s submitted that section 117C(5) required the court to balance the relative severity of the particular offence when assessing whether the effect of deportation is “unduly harsh” on a child.

Lord Carnwath disagreed and his reasoning was as follows:

  • There is no express indication as to how or at what stage of the process to give effect to the proposition, at s117C(2), that the more serious the offence committed the greater the public interest there is in deporting the criminal.
  • However, the proposition of a greater public interest in deporting more serious criminals is recognised by the different category of rules for criminals who have served sentences of over four years. Section 117(2) could be read as a preamble to the establishment of these different categories.
  • Exception 1 is self-contained and requires no further balancing exercise in relation to the seriousness of the offence. It would be surprising if Exception 2 were structured in a different way.
  • There is nothing to suggest that the word “unduly” is a reference back to the issue of relative seriousness of the offence.
  • The purpose of the Act was to reduce the scope of judicial evaluation. It is difficult to reconcile this purpose with the requirement that the court carry out a further balancing exercise.
  • If the court were required to balance the relative severity of a parent’s offence, it would mean, for example, asking whether consequences which are deemed unduly harsh for the son of an insurance fraudster would be acceptably harsh for the son of a drug-dealer. Quite apart from the difficulty of a reaching a rational conclusion on such a question, it is in direct conflict with the principle that the child should not be held responsible for the conduct of the parent.

Nonetheless, Lord Carnwath recognised that the phrase “unduly harsh” does suggest a higher hurdle than “reasonableness”. The word “unduly” suggests a level of harshness that is due, a level that is “acceptable or justifiable in the relevant context”. He said that one is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.


In KO, Judge Southern had expressed the view that in applying the “unduly harsh” test it was necessary to take account of the criminality of the parent. However, Judge Southern did not in fact make mention of the parent’s criminality when assessing the consequences of deportation on the child.

In relation to IT, Lord Carnwath rejected the Court of Appeal’s importation of a “very compelling reasons” standard into the assessment of whether deportation was “unduly harsh”. That notwithstanding, Lord Carnwath confirmed the order of the Court of Appeal that the case should be remitted to the Upper Tribunal since he agreed with the Secretary of State that the First-Tier Tribunal had erred in law.

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