Regular readers of this blog will, by now, be well aware of the Supreme Court’s decision in KO (Nigeria) which determined the correct approach in immigration cases involving children who are either British or who have lived in the UK for seven years.

However many, particularly those outside Scotland, may have missed the recent decision of the Inner House of the Court of Session in SA v Secretary of State for the Home Department [2018] CSIH 71 which applies and interprets KO (Nigeria). The judgment highlights the nuanced intricacies of the Supreme Court’s decision.

Background

The case has a complex procedural history. A Bangladeshi family (mother, father, and two children), none of whom had status in the UK, applied to stay. The eldest child of the family was born in the UK and had lived here for seven years. It was argued that she could not reasonably be expected to leave.

The Home Office refused the application. The family appealed to the First-tier Tribunal. The appeal was dismissed. Permission to appeal was refused by the First-tier and Upper Tribunal. Judicial review proceedings were commenced challenging this decision.

The Outer House of the Court of Session dismissed the judicial review in September 2017. The family argued that the Upper Tribunal was wrong to have regard to the immigration history of the parents when considering if it was unreasonable to expect the eldest child to leave the UK. This assessment should be carried out having regard solely to the position of the child. They argued that the decision of the Court of Appeal in MA (Pakistan) was wrongly decided.

These arguments were rejected: the Outer House was “not persuaded that the decision of the Court of Appeal in MA (Pakistan) is incorrect” and opined that:

…excising out section 117B(6) from the other subsections of section 117B appears to fly in the face of the direction in section 117B that these public interest considerations apply in all cases. If Parliament had wanted the assessment of whether it was reasonable to expect the child to leave the UK to stand alone then it could have said so.

The Outer House took the view that the immigration status of the parents is relevant as:

…before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, “Why would the child be expected to leave the United Kingdom?” In a case such as this there can only be one answer: “because the parents have no right to remain in the UK”. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made.

This decision was appealed to the Inner House, which heard the case after the Supreme Court’s decision in KO (Nigeria) had been issued.

The appeal in light of KO (Nigeria)

You could be forgiven for assuming that the appeal was successful given that in KO (Nigeria) the Supreme Court decided the Court of Appeal’s approach in MA (Pakistan) was wrong and that section 117B(6) is “directed solely to the position of the child”. Instead the appeal was dismissed.

In KO (Nigeria) the Supreme Court explicitly endorsed the need to address the question of why the child would be expected to leave the UK before assessing reasonableness. It described this as “inevitably relevant”, albeit indirectly. In light of this endorsement the Inner House determined that the Outer House’s “reasoning cannot be faulted and the appeal on this ground must be refused”.

This seems to diminish the child-centred approach endorsed in KO (Nigeria). It suggests that courts are still entitled to reject the argument that the section 117B(6) reasonableness assessment is directed solely at the position of the child, despite the Supreme Court’s endorsement of this approach. This seems incongruous but reflects the fact that KO (Nigeria) is a nuanced decision. Placing emphasis on different sections of the judgment can lead to divergent approaches.

The Inner House has, in my view, adopted quite a restrictive interpretation. Yes, one paragraph of the Outer House’s decision was quoted with approval by the Supreme Court. However the rejection of the argument that the reasonableness assessment should be carried out having regard solely to the position of the child seems to be at odds with the Supreme Court’s decision.

As noted in the recently updated Free Movement post on the seven year residence rule, taking into account a parent’s immigration history as an inevitably relevant, indirectly material factor whilst simultaneously adopting a child-centred approach and not blaming the child for the conduct of his or her parent is a delicate balance. Whether a decision will survive scrutiny from the higher courts will depend on the precise wording used. Unfortunately for the family in this case, the Outer House’s decision in their case was up to par.