Senior judges have found (yet again) that children can be punished for the sins of their parents, giving a green-light to the Home Office to remove families from the UK (even if they have not committed any crime).
The case of AM (Pakistan) v Secretary of State for the Home Department [2017] EWCA Civ 180 involved a family that had two teenage sons who had lived in the UK for over 7 years. No member of the family had permission to reside in the UK. They tried to rely on a concession widely known as the '7-year rule' (now found in the Immigration Rules and primary legislation). [1] For background on the rule, see my previous post.
The Home Office refused the family's applications and they appealed to the First-tier Tribunal. The Judge dismissed the appeal, finding that the distress of removing the children would not be be "long-lasting or irreversible" and that they could return to an extended family in Pakistan. But the key reason why the children's claim to remain in the UK was rejected was their parents' poor immigration history:
"Notwithstanding that the children's best interests were to remain in the UK, the judge held that they should be refused leave to remain which necessarily meant that the other three applicants' cases had to fail also. The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused."
When the family appealed to the Upper Tribunal, the UT disagreed and found that the test of whether it was 'reasonable' to require the children to leave the UK was an issue to be determined from the perspective of the child alone (as the language of Rules and legislation suggest following the previous case of Treebhawon and others [2015] UKUT 674).
The Secretary of State appealed to the Court of Appeal and won. In a mercifully short judgment, the Court of Appeal confirmed (again) that the 'reasonableness' test allows decision-makers to consider the wider public interest of firm immigration control, in harmony with the previous authority of MA (Pakistan) and others v Secretary of State for the Home Department [2016] EWCA Civ 705 (which I've blogged about here).
That guidance applies to paragraph 276ADE(1)(iv) of the Rules, even though on the face of it the Rules make no reference whatsoever to public interest factors (see § 22 of the judgment). The Court upheld the decision of the First-tier Tribunal.
But there's a kink in the reasoning.
This decision, like MA (Pakistan) before it, expresses some reluctance before taking this path. I think that's because beneath the technicalities, the law is allowing decision-makers to punish children for the sins of their parents, sometimes where there is little or no justification for doing so.
It's questionable whether the broad definition of 'reasonableness' being applied in the Court of Appeal produces outcomes that are likely to respect human rights legislation, in particular, the protected right to family life.
It's also questionable whether this approach gives effect to the duty to safeguard and promote the welfare of children and does justice to the long line of case law on the weight to be attached to the best interests of children. We're reminded by the Supreme Court that children must be treated as autonomous rights-holders, not vehicles for other people's rights.
If the end result is that children are being punished for the sins of their parents, that may put the UK in breach of its international obligations on child rights and respect for the right to family life.
Read my FREE table of case law in this area here.
_____________________________
[1] See paragraph 276ADE(1)(iv) of the Rules and section 117B(6) of the Nationality Immigration and Asylum Act 2002.