UK Court of Appeal concludes that ‘reasonableness test’ is not an assessment of the best interests of the child
Published: 1 Sep 2016
Eirwen Pierrot is a barrister specialised in employment law and public law and local government, with an emphasis on community care and mental health. The following case summary of the recent Court of Appeal judgement in MA (Pakistan) was originally published by Rights of Women and has been lightly edited to conform to newsletter style. The full judgment was published on 7 July 2016 and can be found here.
R (on the application of MA (Pakistan) and ors v Upper Tribunal (Immigration and Asylum Chamber) & Anor and linked appeals [2016] EWCA Civ 705
The Court of Appeal has provided guidance on the correct application of the ‘reasonableness test’ in paragraph 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002.
Paragraph 276ADE(1) sets out certain requirements which, if satisfied, lead to the applicant being granted leave to remain. The requirement in paragraph 276ADE(1)(iv) is that the applicant is under the age of 18, has lived continuously in the UK for at least 7 years, and it would not be reasonable to expect him to leave.
Section 117B(6) applies where consideration needs to be given as to whether a decision made under the Immigration Acts breaches a person’s Article 8 rights. It provides that, in cases of persons not liable to deportation, the public interest does not require the person’s removal where the individual has a genuine and subsisting parental relationship with a qualifying child (British citizen child or child who has lived in UK for 7 years or more) and where it would not be reasonable to expect the child to leave the UK.
The Court of Appeal has now confirmed that the same approach to ‘reasonableness’ applies in relation to both provisions. The Court of Appeal also had to grapple with whether it should focus on a narrow interpretation of reasonableness, as advocated by the Applicants, or a wider interpretation of reasonableness as advocated by the Secretary of State.
Under the Appellant’s narrow interpretation, when deciding whether it would be reasonable to expect the child to leave the UK, the focus must solely be on the position of the child. The conduct and immigration history of the parents were immaterial.
Under the Secretary of State’s wider interpretation all relevant public interest considerations could be taken into account. Although the fact that the child had been resident in the UK for 7 years must be given “significant weight” in the balancing exercise (para. 28), that did not mean that all other factors usually applied in a proportionality assessment must be ignored.
The Court, somewhat reluctantly, held that the Secretary of State’s analysis was the one that must be applied. Lord Justice Elias, giving a judgment with which the other Lord and Lady Justices agreed, said that had he not felt bound by authority he would have preferred the narrow approach advocated by the Applicants (paras 36 and 45). He made it clear, however, that the fact that the child had been living in the UK for 7 years was a factor which “should be given particular weight” when assessing whether it would be reasonable for the child to leave the UK or not (para. 21), and that where the 7 years residence requirement was satisfied, there needed to be ‘strong reasons’ for refusing leave (para. 46). He explained (at para. 46):
“After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.”
Lord Justice Elias also said that the best interests of the child “will be highly relevant” (para. 23) though also said that it would not, contrary to the arguments of one of the Appellants, be conclusive (para. 47).
Lord Justice Elias considered that the factors that were said by Lord Justice Clarke to apply in the proportionality exercise in EV (Phillipines) apply in the reasonableness assessment (para. 48). Those factors include:
- the child’s age;
- the length of time they have been here;
- how long they have been in education;
- what stage their education has reached;
- to what extent they have become distanced from the country to which it is proposed they return;
- how renewable their connection with that country may be;
- to what extent they will have linguistic, medical or other difficulties in adapting to life in that country;
- the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens;
- the immigration and criminal history of the parents.
The above may serve as a useful checklist for practitioners preparing appeals.