The vexed issue of reasonableness, removals and children is back in the judicial spotlight once more in a new Court of Appeal ruling, Runa v Secretary of State for the Home Department [2020] EWCA Civ 514.

The case involved an appeal against a refusal to grant Ms Runa, an overstayer, leave to remain in the UK, even though she was married to a British citizen and had two British children under the age of four.

The Court of Appeal stressed the critical importance of addressing the question of whether it is reasonable to expect children to leave the UK in such circumstances, building on a stream of recent cases tackling the same issue.

Background: section 117B

The preoccupation with this question was prompted by the 2014 introduction of section 117B into the Nationality, Immigration and Asylum Act 2002. This provision, considered in detail in Iain’s very helpful briefing, was one of several enactments intended to reduce judicial discretion in immigration cases with human rights implications.

Section 117B sets out the “public interest considerations” that must be weighed against those rights when courts are assessing the impact of removing someone in the UK without leave. Subsection 117B(6) alone – and in in particular subparagraph (c) – has generated a steady stream of judicial decisions. It says:

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 United Kingdom.

“Reasonable” will always be a subjective matter. But legal debate has focused on a number of narrow technical issues, and in particular the relevance of the parent’s own conduct in assessing reasonableness.

Reasonableness and the art of family maintenance

The kicking-off point was MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, which actually looked at section 117C of the 2002 Act. This sister provision deals with the “public interest” where a parent faces deportation following a criminal conviction. The Court of Appeal held that the seriousness of the parent’s offending, and their immigration history, must be taken into account when assessing whether deportation would be “unduly harsh” on the child in question.

This approach was reluctantly followed by the Court of Appeal in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705. Although there had been no offending in this case, the court felt that the conduct and immigration history of a child’s parents were still relevant factors when considering whether or not it would be “reasonable” to expect a child to leave the UK under section 117B.

But when the same case made its way to the Supreme Court, in the renamed guise of KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, the UK’s top judges disagreed.

The Supreme Court held that the conduct of a parent is entirely irrelevant when assessing the impact of removal on a child, whether using a “reasonableness” or “undue harshness” test. This is not to say that conduct is entirely immaterial to the overall outcome – only that it has no bearing when considering the impact on the child.

The Supreme Court decision has not been the end of the matter. The focus then shifted to whether there was any need to even bother with section 117B(6) (or its section 117C equivalent) in cases where there was no chance of the child leaving the UK anyway, regardless of what happened to the parent facing removal.

The Court of Appeal’s answer, in AB (Jamaica) [2019] EWCA Civ 661, was unequivocal. Section 117B(6) is a statutory requirement and so, regardless of whether the child will in practice leave the UK, the question of whether it is reasonable to expect the child to do so must still be asked.

Ms Runa’s case

The background to the latest Court of Appeal case is that Ms Runa had been brought to the UK in 2006 from Bangladesh at the age of 14 on a visitor visa. She had lived here without leave ever since.

An application to remain in the UK based on her marriage was refused in 2015. By the time her appeal came before the First-Tier Tribunal in 2016, the couple’s first child had been born. Ms Runa won her appeal at this first stage but the Home Office took the matter to the Upper Tribunal. By this time, Ms Runa had given birth to a second child.

The Upper Tribunal agreed with the Home Office. It said the First-Tier Tribunal had failed to give proper reasons for its decision and dismissed Ms Runa’s appeal. She took her case to the Court of Appeal.

The Court of Appeal’s decision

Firstly, the Court of Appeal rejected the suggestion that section 117B(6) would always mean 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.

It also laid to rest a question raised in other cases: whether section 117B(6) is a standalone provision or whether it should be read as part of a broader human rights assessment. The Court of Appeal was clear that section 117B(6) must be read as a self-contained provision. This is because a parent’s conduct would inevitably play a role in any broader human rights analysis of the public interest – thereby conflicting with KO Nigeria’s direction that parental conduct is irrelevant to the section 117B(6) question.

The judgment clearly stated that the “the only question is focussed on the child: would it be reasonable to expect the child to leave the UK?” It said that if the answer to that question is “no”, then that is the end of the matter. But if the answer is “yes”, then there is still scope for a further exploration of human rights law set out in Article 8 of the European Convention on Human Rights. This would be a separate analysis, however.

Turning to the facts of Runa, the Court of Appeal found the Upper Tribunal had gone astray in its approach, by asking the wrong questions. Instead of asking whether it would be reasonable for the children to leave the UK, as required by section 117B(6)(b), it had instead asked:

• whether it would be reasonable for the children to remain in the UK without their mother, and

• whether there would be “insurmountable obstacles” to maintenance of the family unit outside the UK, which was irrelevant.

Having failed to ask the right question, the Court of Appeal said, the Upper Tribunal had naturally failed to make the appropriate findings of fact in its decision.

Unfortunately for Ms Runa, this meant that despite succeeding in her challenge, the Court of Appeal decided to send her case all the way back down to the First-Tier Tribunal to make those findings of fact again.

Meanwhile, the decision is to be welcomed in the broader legal context. It clears up any lingering uncertainty over the interplay between human rights law and sections 117B and 117C, and shores up the Supreme Court’s direction that children should not be blamed for a parent’s actions.