Skip to main content
Skip to main content

Court of Appeal: Section 117B(6) of the NIAA 2002 requires a "fact-finding" approach

Written by
Asad Ali Khan
Date of Publication:
15 April 2020

Runa v Secretary of State for the Home Department [2020] EWCA Civ 514 (08 April 2020): In this appeal Singh LJ accepted, and Baker LJ and Cobb J concurred, the submission that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a "fact-finding" approach in relation to the issue of the public interest in the removal of a parent of a qualifying child. The Court of Appeal found that the only question which arises under section 117B(6) is whether it would be reasonable to expect the child to leave the UK. Singh LJ reiterated that the focus has to be on the child, but the question needs to be answered against the background of the relevant facts, which includes what was likely to happen to the family unit if the person seeking leave to remain was required to leave the UK. Mrs Fahmida Khanom Runa entered the UK as a visitor in June 2006 with a visa from May 2006 to November 2006 and she became an overstayer but in June 2014 she married Mr Ali Hessan, a British citizen. Subsequently, on 1 April 2015 she applied for leave to remain in the UK as the spouse of a person present and settled in the UK. The application was refused on 10 June 2015 but the FTT allowed the appeal in September 2016. Later its decision was set aside in March 2018 by DUTJ Mandalia. Mrs Runa's first son was born in October 2015 and is a British citizen. In October 2018, her second son was born who is also a British citizen.

The refusal of 10 June 2015 concluded that she was unable to satisfy the requirements of paragraph 276ADE(1)(vi) and Appendix FM of the Immigration Rules and the decision-maker applied the requirements for leave to remain as a partner under Appendix FM R-LTRP. Since Mrs Runa was unable to meet all the requirements of Section E-LTRP, the decision-maker applied the requirements for leave to remain as a partner under Appendix FM R-LTRP and considered the application by reference to the requirements of paragraph E-LTRP 1.1(a), (b) and (d). The decision-maker was not satisfied that the requirements of paragraph EX.1 were met by Mrs Runa as: (i) there was no evidence of insurmountable obstacles preventing her and her partner from continuing their relationship abroad in Bangladesh, and (ii) there were no exceptional circumstances which, consistent with article 8 of the ECHR warranting the grant of leave to remain outside the Immigration Rules. When the case came before DUTJ Mandalia, he first considered whether she met the requirements of para 276ADE and Appendix FM of the Immigration Rules. Since she had remained unlawfully in the UK as an overstayer, she could not satisfy the immigration status requirements set out in Appendix FM. Therefore the DUTJ considered para EX.1 and found that she was unable to establish that there were insurmountable obstacles to family life between her and her partner continuing outside the UK.

As for whether it would be "reasonable" to expect the children to leave the UK, the DUTJ considered the test outlined in KO (Nigeria) [2018] UKSC 53, discussed here, at para 19, citing EV (Philippines) [2014] EWCA Civ 874, at para 58, where it was said by Lewison LJ that a "real world" view must be taken. DUTJ Mandalia concluded that, in this case, where there were no insurmountable obstacles to family life between Mrs Runa and her husband continuing outside the UK, the natural expectation would be that the children, aged three and three months, would go with them and there was nothing in the evidence to suggest that this would not be reasonable.

As to the human rights claim on article 8 grounds, the DUTJ applied the approach set out by Razgar [2004] UKHL 27 the DUTJ held that article 8 was engaged and he considered whether the interference was in accordance with the law and whether it was necessary to protect the economic well-being of the country. Indeed, the primary issue was whether the interference was proportionate to the legitimate aim sought to be achieved. As required by section 117A the 2002 Act, as amended by the Immigration Act 2014, the UT had regard to the considerations listed in section 117B. Having taken all of the evidence into account, the UT held that the refusal of leave to remain was proportionate to the legitimate aim of enforcing immigration control. Mrs Runa's appeal was therefore dismissed.

The Appeal

Under Part 5A of the 2002 Act, section 117B has been given the heading Article 8: public interest considerations applicable in all cases. Section 117B(6) states that in the case of a person who is not liable to deportation, the public interest does not require the person's removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the UK.

Aggrieved by DUTJ Mandalia's decision, Mrs Runa argued that the UT had erred in the construction and application of section 117B(6) of the 2002 Act and the "reasonableness" test and that he moreover erred with regard to proportionality under article 8 outside the Immigration Rules.

On the first ground, she said that he incorrectly determined whether it was reasonable to expect her two British children to leave the UK. The test is stated in EV (Philippines) at para 58 as "…is it reasonable to expect the child to follow the parent with no right to remain in the country of origin?". The DUTJ arguably fell into error in failing to establish the context in which to make the reasonableness assessment under section 117B(6) and the judge also erroneously contemplated the possibility that it would be reasonable for the British children to remain in the UK with their father only, contradicting the approach of the Court of Appeal in AB (Jamaica) & AO (Nigeria) [2019] EWCA Civ 661, discussed here. Reliance was placed in Elias LJ's judgment in MA (Pakistan) [2016] EWCA Civ 705 at para 35,where a concession was recorded that Home Office counsel accepted that it will be “relatively rare” for it to be reasonable to expect a British child to leave the UK. (On appeal, MA (Pakistan) & Ors became KO (Nigeria) & Ors in the Supreme Court.)

On the second ground, it was submitted that in DUTJ Mandalia's decision to allow the Home Office's appeal, public interest considerations, and the fact that Mrs Runa did not meet the rules (under Appendix FM, para EX.1(b)), were both considered by the DUTJ alongside the question of "reasonableness" under section 117B(6). Therefore, the DUTJ was wrong to take into consideration those factors when assessing proportionality because wider public interest considerations are not relevant in making that assessment.

The two grounds were merged, they were run as one. The Home Office riposted these two points by saying that EV (Philippines) is authority for the proposition that proportionality must be addressed on the basis of facts as they are in the "real world" (and nothing in the evidence supported the existence of any serious impediment to the family relocating to Bangladesh). The children remaining with the father in the UK was an option that was to be considered in the overall assessment of proportionality. AB (Jamaica) did not impact on this and the "relatively rare" concession made in MA (Pakistan) was not a threshold test. Further, it was reasonable to expect the children to leave the UK, pursuant to section 117B(6), based on a consideration of their circumstances without balancing the public interest in removal. The Home Office thus argued that the DUTJ was entitled to identify public interest considerations and undertake a balancing exercise when considering article 8 proportionality at large.

The Court of Appeal

Mrs Runa submitted that the requirements of section 117B(6) needed to be interpreted as laying down a "categorical" or "hypothetical" approach so that in a case where one of the concerned child's parents had the right to remain in the UK, it could not be reasonable to expect the child to leave the UK with the other parent who had no right to remain. It was further argued that section 117B(6) needed to be interpreted as requiring a "fact-finding" approach whereby the question to be answered under section117B(6) still focused on the child but had to be answered against the background of the relevant facts, which would include the nationality or immigration status of the other parent and what was likely to happen to the family unit if the appellant was required to leave the UK. Mrs Runa said that in her case such a factual inquiry did not take place before the UT.

Singh LJ said at the outset that "at the heart of this appeal lies the correct interpretation of section 117B(6)." It was claimed that the primary submission is either required or at least strongly supported by authority and reliance was placed in the cases of KO (Nigeria) at paras 17-19, Lewison LJ's obiter dicta in EV (Philippines) at para 58, and AB (Jamaica) at paras 59-61, 71, 74-75 (Singh LJ) and para 116 (Underhill LJ). However, "the first and foremost difficulty" in the primary submission, in Singh LJ's view was that nothing in the wording of section 117B(6) supported it and:

27. … The submission amounts in effect to a rule of law, that, wherever one parent has the right to live in the UK and the other parent does not, it will be unreasonable to expect the child to leave the UK. If Parliament had intended to enact such a rule of law, it could easily have said so. Section 117B(6) does not enact a rule of law but rather calls for a question to be asked and answered on the facts of each particular case.

The facts of the authorities relied on were distinct and in KO (Nigeria) neither parent had the right to remain in the UK. In EV (Philippines) neither parent had the right to remain in the UK. Accordingly, Lewison LJ's analysis at para 58 was obiter to the extent that the court had referred to a factual scenario where one parent has the right to remain in the UK and the other does not. The error the Home Office fell into in AB (Jamaica) did not arise in Mrs Runa's appeal. In AB (Jamaica) the government argued that that, in circumstances where it was not expected that a child would in fact leave the UK, there was no need to ask the question posed by section 117B(6). That submission was rejected and the court judged that the question is a single question which must always be asked but that, in such circumstances, the answer would be No.

Further, reliance was placed in GM (Sri Lanka) [2019] EWCA Civ 1630 (discussed here), especially at para 34, to argue that the court adopted a hypothetical approach in that case. Yet Singh LJ emphasised that GM (Sri Lanka) did not concern section 117B(6) at all and was a conventional case of a proportionality assessment under article 8(2) itself. He said that the court heard interesting submissions from the parties as to whether there is scope for article 8 to play a part in cases where section 117B(6) arises. The government pointed out that that there is a residual scope for article 8 to apply and while section 117B(6) is a "freestanding" provision in line with the approach at para 17 in KO (Nigeria), that does not mean that it is exhaustive of the scope of article 8. Singh LJ accepted the submission made by the government that section 117B(6) is a benevolent provision, which operates only in one way: potentially in favour of an appellant but never adversely to an appellant. It seemed both to be right in principle and also to be consistent with the reading of section 117B(6) by Elias LJ in MA (Pakistan), at para 17, where he said it "must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the subsection are satisfied, the public interest will not justify removal."

The key point to note is a conventional article 8(2) inquiry can take into account, as part of the overall proportionality exercise, other public interest considerations – including the conduct of the parent or parents. By contrast, section 117B(6) has no room for such an inquiry to take account of the conduct of the parents as held by the Supreme Court in KO (Nigeria) whereby the approach in MM (Uganda) [2016] EWCA Civ 617 was overruled (and Elias LJ's view at para 36 in MA (Pakistan) was approved as sound to that extent). With that in mind, Singh LJ held that:

33. … Under section 117B(6) the only question is focussed on the child: would it be reasonable to expect the child to leave the UK? If the answer to that is No, there is no need to go on to consider Article 8(2) more generally. However, as a matter of principle, and as Mr Anderson rightly submitted, if the answer is Yes, there will still be a residual scope for Article 8(2) to be considered.

Patel (British citizen child – deportation) [2020] UKUT 45 (IAC) did not assist the court in determining the issue which arose on appeal as that case was concerned with section 117C(5), which according to the UT called for a hypothetical question to be answered. Whereas the Court of Appeal rejected the primary point, it accepted the secondary point that section 117B(6) "calls for a fact-finding exercise so that the full background facts must be established against which the only statutory question posed by that provision can then be addressed." Singh LJ said this of the decided authorities:

36. … I would emphasise again, as the Supreme Court did in KO (Nigeria) and this Court did in MA (Pakistan) and AB (Jamaica) that, once all the relevant facts have been found, the only question which arises under section 117(6)(b) is whether or not it would be reasonable to expect the child to leave the UK. The focus has to be on the child.

The court also accepted the submission that the test under section 117B(6) is not whether there are "insurmountable obstacles" to the maintenance of family life outside the UK and that would be so even in an ordinary article 8 case as demonstrated by paras 42-52 and paras 43-44 of GM (Sri Lanka): that is even more so in a case which is not a conventional article 8(2) case but arises under section 117B(6). The Home Office argued in the present case that DUTJ Mandalia was right and that he had in substance properly addressed the question which he had to in accordance with section 117B(6) and, despite the opportunity to adduce further evidence before the UT, on the basis of the limited evidence which Mrs Runa had chosen to place before it, the DUTJ was entitled to reach the conclusion which he did. Singh LJ said this in response:

40. I do not accept those submissions. In my judgment, the UT did fall into error as a matter of approach. This is illustrated in particular by what was said at paras 26 and 27 of the judgment. At para 26 the DUTJ said that: "There is no evidence before me to suggest that the appellant's partner would be unable to cope alone with the children, with the support of his family, if they chose to remain in the UK." At para 27, he said: "… I should consider whether it is reasonable for the children to live in the UK with their father, or live with the appellant and her husband as a family unit."

DUTJ Mandalia contemplated two alternatives arising on the facts, the entire family unit would go overseas or the children would remain in the UK only with their British citizen father and that the appellant would leave the UK the latter alternative would inevitably disrupt the family unit. This would be contrary to the best interests of the children. The DUTJ asked the question whether it would be reasonable for the children to remain with their British citizen father in the UK. This is why he asked such questions as whether he could cope with bringing them up, with the support of family in the UK. Singh LJ said:

42. In my judgment, that was fundamentally the wrong approach under section 117B(6), which poses the question whether it would be reasonable to expect the children to leave the UK.

His Lordship reiterated that the key question is not a hypothetical one and instead it is a normative question, not merely an exercise in prediction. This point was quite apparent from the view of the court in AB (Jamaica) at paras 73-75 where his Lordship had himself approved of UTJ Plimmer's approach in SR (Pakistan) [2018] UKUT 334 (IAC) at para 51. Singh LJ accepted the submission that the UT had wrongly focussed on the question whether there would be "insurmountable obstacles" to the maintenance of the family unit outside the UK. He said that an "insurmountable obstacles" requirement was also contrary to what is required even in an ordinary article 8(2) case as made clear in GM (Sri Lanka), on the basis of weighty Strasbourg caselaw. Indeed, such an approach would be all the more the wrong in a case arising under section 117B(6).

Comment

The Court of Appeal found it appropriate to allow Mrs Runa's appeal. It remitted her case to the FTT (by agreement of the parties) for redetermination. From that angle, her victory in the Court of Appeal after five years of litigation shows the difficulties that immigration appellants (in Mrs Runa's case a mother with two small children) often find themselves in. It is routine for immigration appellants to remain in lengthily in limbo while their quest for justice is ongoing. Many people prefer to abandon their legal rights in the UK and go and live in another country with softer immigration laws.

The decision in MM (Uganda)/KO (Nigeria) [2016] EWCA Civ 617 which involved foreign criminals, was quite regrettable because the Court of Appeal had misread the legislation quite drastically. Its late author (Sir John Laws) had incorrectly included the criminal’s immigration and criminal history in assessing undue harshness. Lord Carnwath was not persuaded by this approach. As he said at para 32 of KO (Nigeria) "once one accepts, as the Department did at that stage (rightly in my view), that the issue of 'reasonableness' under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2)." Nevertheless, Lord Carnwath's judgment has been criticised because it approves of the assessment in EV (Philippines) but "tells us nothing about how to conduct that assessment."

It is important to remember that, section 117D(1) defines a "qualifying child" as someone under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years or more. Moreover, paragraph 276ADE(1)(iv) of the Immigration Rules, also entails whether it would not be reasonable to expect a child with continuous residence of at least seven years to leave the UK. The rule concerns the requirements to be met by a child applicant for leave to remain on the grounds of private life. However, it is distinct from Part 5A which deliberately establishes an uncomplicated set of rules so as to decrease the need for discretionary judgment when taking account of the public interest or other factors not directly reflected in the statutory language. That was the view of the Supreme Court in KO (Nigeria). Lord Carnwath opined the provisions of Part 5A suffer from "unhappy drafting". It is therefore unsurprising that these provisions have produced a constant stream of cases since that judgment and further clarification has been required from the Court of Appeal and the tribunal.

In AB (Jamaica) Singh LJ clarified that an undeserving parent's immigration history is irrelevant for the purposes of section 117B(6). He also approved of the UT's views in JG (section 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 (IAC) (discussed here) but made the further observation that the concept of "to expect" something can be ambiguous. Indeed, it can be, as the UT had construed it, simply a prediction of a future event. On the other hand, "it can have a more normative aspect [force]" as shown by the sense in which Admiral Nelson famously used it at Trafalgar by declaring that England expects every man to do his duty. Singh LJ added in AB (Jamaica) that in enacting section 117B(6), Parliament "meant what it said" and so courts and tribunals must give effect to the provision on its correct statutory interpretation. Indeed, in the present judgment he yet again emphasised that the question is not a hypothetical one and it is a normative question, not merely an exercise in prediction. On the whole, the decision in Mrs Runa's case is to applauded as it gives effect to the Supreme Court's view in KO (Nigeria) that children must not be blamed for the sins of their parents.

It seems that the Court of Appeal is trying its best to keep the law in check when it comes to the provisions of Part 5A. It is to be noted that apart from KO (Nigeria), the other case decided by the Supreme Court on Part 5A is Rhuppiah [2018] UKSC 58 (discussed here) which concerned the meaning of "precarious" in section 117B(5) of the NIAA, whereby little weight should be given to a private life established by a person at a time when their immigration status is precarious. The Supreme Court held that anyone present in the UK who is not a British citizen and who has time-limited leave short of indefinite leave to remain has a precarious immigration status.

KO (Nigeria) and Rhuppiah were decided by the Supreme Court one-and-a-half years ago which is a significant period of time in immigration law and the apex court will inevitably turn its attention to these matters again. The Supreme Court granted permission to appeal in Sanambar [2017] EWCA Civ 1284 on 9 January 2020. In Sanambar (discussed here), the Court of Appeal held that in evaluating whether the public interest in deportation is outweighed the "very significant obstacles" test to integration (into the country to which a foreign criminal's deportation is proposed) entails taking a broad evaluative judgment as envisaged by Sales LJ in Kamara [2016] EWCA Civ 813 (discussed here) and it includes considering "generic" factors such as intelligence, employability and general robustness of character. Sanambar involves paragraphs 398, 399 and 399A of part 13 of the rules and changes made to them on 28 July 2014 by section 117C, which has the heading Article 8: additional considerations in cases involving foreign criminals.