“Reasonable” to expect UK-born 11-year-old to move to Bangladesh, Court of Appeal says

The protection afforded to children who are long-term UK residents has been further diluted in a new Court of Appeal decision, NA (Bangladesh) v Secretary of State for the Home Department [2021] EWCA Civ 953.

The judgment is the latest in a line of cases to grapple with what exactly is meant by legal provisions directing decision-makers to assess whether it is “reasonable” for such children to be expected to leave the UK when they or a parent has no permission to live here.

Background

This particular case involved a Bangladeshi couple, who were both overstayers in the UK at the time they met and got married. Their first child, YS, was born here in 2010, with a younger sibling born in 2017. The family applied to remain in the UK in 2018 based on the fact YS had lived in the UK for seven years.

The Home Office view, in essence, was that although YS had been born here, attended school here and had never once left the UK, it was reasonable to expect him to move to Bangladesh as his family would be going with him. The immigration tribunals agreed with the Home Office and the case ended up before the Court of Appeal.

Reasonableness and the seven-year rule

Two separate legal provisions address the issue at stake in this case.

One of these, paragraph 276ADE (1) (iv) of the Immigration Rules, recognises that children who have lived in the UK for at least seven years should be granted permission to stay in the UK if it would not be reasonable to expect them to leave.

The other provision, section 117B(6) of the Nationality, Immigration and Asylum Act 2002 read in conjunction with section 117D(1), stipulates that it is not in the public interest to remove the parent of a child who is British / has lived in the UK for seven years if it would not be reasonable to expect the child to leave the country.

YS’s family sought to rely on the Court of Appeal ruling of MA (Pakistan) [2016] EWCA Civ 70, which said it would not be “reasonable” for such children to leave the UK unless there were “powerful reasons to the contrary”.

The Court of Appeal’s view in this latest case was this approach to reasonableness could simply not stand in light of the Supreme Court’s decision in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53. In that case, the Supreme Court held that the only relevant consideration when assessing reasonableness is the child’s circumstances – in other words, the parents’ conduct is irrelevant. But in his findings, Lord Carnwath also noted that the immigration status and nationality of overstaying parents will be “indirectly relevant” because the reasonableness of a decision about the child’s future will also depend on where that child is likely to end up if an application is refused.

No presumption for or against allowing child to stay

In this latest case, the Court of Appeal said at paragraph 28 that:

The upshot is that the effect of Lord Carnwath’s reasoning in KO (Nigeria) is that […] in a case falling under the seven-year provision where neither parent has leave to remain the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the qualifying child to leave the UK with their parents. That is necessarily inconsistent with the so-called “powerful reasons doctrine” apparently endorsed by Elias LJ in MA (Pakistan).

Or, “to put it more plainly, the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain” (paragraph 29).

But nor does this create a presumption in the “opposite direction”, added Lord Justice Underhill at paragraph 30. Instead, it represents no more than “a common-sense starting-point”, and

it remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents. If the conclusion of the evaluation is that this would not be reasonable, then the “hypothesis” that the parents will be leaving has to be abandoned and the family as a whole will be entitled to leave to remain.

In short, the fact a child has lived in the UK for more than seven years will be a “material consideration” when evaluating the circumstances but will not create a presumption for or against removal, said the Court of Appeal.

So what’s the point of the seven-year rule?

This does not make the seven-year “rule” meaningless, Underhill LJ was at pains to stress. He pointed to the decision of Runa v Secretary of State for the Home Department [2020] EWCA Civ 514, yet another case to wade into the “reasonableness” waters.

Runa said that where a Home Office decision-maker considered it would be unreasonable to expect a child to leave the UK, that was an end of the matter. There was no need to undertake a broader assessment of the public interest. But if the decision-maker considered it would be reasonable for the child to leave the UK, then a broader human rights analysis was also called for — giving families a second bite at the cherry, so to speak.

This will be of little consolation to this particular family. The conclusion of this canter through the various “reasonableness” authorities was simply that the Upper Tribunal had been right all along: it would be reasonable to expect YS to move to Bangladesh because his entire family could go with him. In this case, the further human rights analysis changed nothing.

Despite the Court of Appeal’s insistence that this doesn’t further undermine the longstanding rule in favour of allowing children who’ve clocked up seven years in the UK to remain here, it’s hard to read this judgment any other way. The difference between a “presumption” and a “common-sense starting-point” seems fairly academic. If a British-born 11-year old child who has never once left the UK is not safe from removal – when his parents’ only offence was overstaying – it’s not clear who the seven-year rule does protect.