Interests of the child in immigration cases involving criminality

Coram Children's Legal Centre
Monday, December 3, 2018

This recent Supreme Court case has given further clarification on how the best interests of the child are considered in immigration cases, in particular when there has been criminality on the part of the parents.

  • KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53

The cases examined the interpretation of paragraph 276ADE(1)(iv) of the Immigration Rules and provisions in the Immigration Act 2014 that were designed to limit the discretion of the courts when deciding cases based on Article 8 of the European Convention on Human Rights. Four cases were involved, with different individual circumstances but the central issue in each was that of the parent's conduct. The court held that the conduct of a parent, including criminal conduct, is not relevant when considering the best interests of the child, on the basis that a child should not be blamed for matters for which he or she is not responsible.

The cases involved different laws - paragraph 276ADE(1)(iv) of the Immigration Rules which provides that a child be permitted to remain where the child "has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK", and sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002 which set out the public interest considerations the court must take in to account in cases involving Article 8 and foreign criminals.

The Supreme Court found that when assessing whether it is "reasonable" for a child to have to leave the UK and whether removal of the parent would have an "unduly harsh" effect on the child, the conduct of the parent is irrelevant to that assessment. The tribunal should not be expected, for example, to decide whether consequences which are deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug-dealer.

The decision overall is a positive step for children and assessments around their best interests. However, what is deemed "reasonable" and what is held to be in the child's best interests will still depend on the particular circumstances of the child. In the four cases involved, two cases were refused outright, while the two others were refused but sent back to the tribunal for re-consideration.

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