To what extent should a parent’s behaviour have an impact on whether or not a child is deported from the UK or faces a future in the UK without a parent? This was one of the questions considered by judges in the Supreme Court hearing the immigration law case of KO (Nigeria) and others v Secretary of State for the Home Department.
In the Merchant of Venice William Shakespeare said that the sins of the father are to be laid upon the children. Sometimes top London immigration solicitors think that adage may be the case when it comes to UK immigration policy. Why? Well when considering whether or not a child can stay in the UK with a parent, in some situations immigration rules say that the parent’s conduct should be considered by tribunals and the court.
The best London immigration solicitors will tell you that Home Office immigration officials, tribunals and courts should act in children’s best interests when making immigration decisions relating to children. The tension between what is in an individual child’s interests and the condemnation of parental behaviour on public policy grounds and in compliance with strict UK immigration rules has led to many cases coming before the courts to consider the balance to be struck between the best interests of children in immigration cases and public immigration policy.
Put simply, top London immigration solicitors can be asked to fight a deportation case of a parent convicted of a criminal offence on the basis that deportation would be unduly harsh on the child – either if the child were to have to follow the parent and leave the UK or remain in the UK but without the parent’s day to day care.
The case of KO
The UK Supreme Court has now given a judgment in four linked immigration cases concerning what is in the best interests of children who face removal from the UK or whose parent or parents face deportation from the UK.
The case of KO (Nigeria) and Others v Secretary of State for the Home Department is of interest to all top London immigration solicitors as it analyses and considers the tension in law in following what is best for children caught up in the UK immigration system and the government’s strict immigration rules. Provisions in the immigration Act 2014 were intended to reduce court discretion over deciding what is in a child’s best interests when making immigration decisions. Despite the legislation and immigration rules there have been numerous court cases over the years considering the interests of children, culminating in the Supreme Court case of KO.
The appeal in the case of KO considered whether:
• A court or tribunal, when considering the public interest in deportation, should take into account parental misconduct when assessing whether the effect of deportation on a child is unduly harsh;
• The weight to be given by the court to the public interest argument as opposed to the child welfare argument;
• The correct approach to determine when it will be unreasonable to expect a non-British national child who has been resident in the UK for 7 or more years to leave the UK under the immigration rules.
The Supreme Court in the case of KO dismissed all the appeals. The Court considered that:
• Where the indefinite Leave to remain provide for a discretionary assessment of the impact or effect of the removal or deportation of a child using a test of reasonableness or undue harshness then the behaviour of the child’s parent is not relevant to the assessment of the impact on the child ;
• The immigration rules state that a child should be permitted to stay in the UK if the child has lived continuously in the UK for at least 7 years and it would not be reasonable to expect the child to leave the UK. The court confirmed that this test relates to the child, not to his or her parent. However the court went onto say that the immigration status of a parent or parents could be indirectly relevant when deciding if it is reasonable for a child to leave the UK;
• If a parent is arguing against deportation from the UK because although they are classified as a foreign criminal (having been sentenced to 12 months or more in prison) and they say that deportation would be unduly harsh on their child because of their relationship with the child then the test of whether to deport the parent is whether it would create undue harshness. This test is different to the test of reasonableness, however even under the ‘undue harshness’ test a child should not be held responsible for the behaviour of a parent.
The balance of immigration law and the welfare of the child
Acting in an individual child’s best interests has created tension between strict immigration control, public policy and the principle that if the welfare of children is involved in immigration then the best interests of the children should be the primary consideration. Court case law has developed to say that the court has to act in children’s best interests and to assess whether their best interests are outweighed by other considerations.
Is the case of KO good news for children?
The court case of KO does not stop the strain in assessing what is in a child’s interests when it comes to the removal of a child or parent from the UK and what is in the public interest. Further the court case does not really make a complex area of immigration law any easier to understand for people caught up in the immigration process. However potentially top London immigration solicitors can use the case of KO to reinforce their arguments that the sins of the father are not to be laid down on the child in light of the judge’s comments that poor conduct of a parent is not relevant to assessing whether it is reasonable for a child to have to leave the UK or when assessing whether the removal of the parent would have an unduly harsh effect on the child.
What the case of KO does emphasise is the importance of families getting the very best London immigration solicitors advice on how to prove the impact of an individual child of removal from the UK or the removal of a parent. That all comes down to individual family circumstances as well as the skills of top London immigration solicitors.
OTS Solicitors are Legal 500 recommended Immigration Solicitors who also specialise in Family Law. We are therefore able to provide expert advice on immigration cases involving children and a consideration of their best interests. Please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors.
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Posted on: Wednesday, 07 November, 2018