DFAL, UKSC, UTIAC

Deportation and Removal: Supreme Court to Hear Appeals on Seven Year Rule

Next week the UKSC will consider cases on the seven year rule. In Pereira (Appellant) v Secretary of State for the Home Department (Respondent) the court will consider the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under 276ADE(1)(iv) of the Immigration Rules. The Appellant is a citizen of Sri Lanka. He arrived in the UK as a dependent of his father in 2006 aged seven. In November 2013 he applied in his own right for indefinite leave to remain in the UK under 276ADE(1)(iv) of the Immigration Rules. His application was refused by the Respondent on the basis that it was not unreasonable for him to return to Sri Lanka given that both his parents had been refused further leave to remain in the UK. He appealed this decision to the First-tier Tribunal. The First-tier Tribunal allowed the appeal but failed to consider at all whether it was unreasonable for the Appellant to leave the UK. The Upper Tribunal overturned the appeal and remade the decision holding that it would not be unreasonable for the Appellant to return to Sri Lanka. The Court of Appeal held that the Upper Tribunal had failed to properly carry out the proportionality assessment and remitted the case to the Upper Tribunal. The Appellant contends that his appeal should have been allowed outright.

In NS (Sri Lanka) and others (Appellants) v Secretary of State for the Home Department the court will consider whether the conduct of the parent(s) can be taken into account when considering whether it would be reasonable for a child to leave the UK under s.117B(6) of the Nationality, Immigration and Asylum Act 2002. All three appellants are citizens of Sri Lanka. In October 2008 each of the appellants applied for leave to remain in the UK as a Tier 1 (Post-Study Work) Migrant. In support of these applications they each submitted a Post Graduate qualification in Business Management and an academic reference from The Cambridge College of Learning. Their applications were rejected as the documents they submitted were false; The Cambridge College of Learning had never offered the course the appellants said they had taken. They appealed to the Upper Tribunal which dismissed their appeals. It considered that their removal would be a proportionate interference with their private and family lives. Two of the appellants had children who were ‘qualifying children’ under s.117B(6) of the Nationality, Immigration and Asylum Act 2002. Although it was in the children’s best interests to remain in the UK, the Upper Tribunal nevertheless considered it would be reasonable to expect the children to leave the UK with their parents given their fathers’ dishonesty. The Court of Appeal upheld the decision of the Upper Tribunal.

Moreover, in IT (Jamaica) (Appellant) v Secretary of State for the Home Department (Respondent) the court will consider the weight to be given to the public interest when considering whether a refusal to revoke a deportation order against a foreign criminal would be “unduly harsh” on his British citizen child in terms of section 117C(5) of the Nationality, Immigration and Asylum Act 2002. The appellant is a Jamaican national who is married to a British citizen. They have a son, born in 2002, who is also British and has special educational needs. In 2009 the appellant was sentenced to 42 months’ imprisonment for supplying class A drugs. A deportation order was issued and, after unsuccessfully appealing, he was deported in 2010. He applied from Jamaica to have the order, revoked. This was refused by the SSHD. The First-tier Tribunal allowed his appeal, finding that the effect of the continuation of the deportation order would be “unduly harsh” on his son. The UT dismissed the SSHD’s appeal but the Court of Appeal allowed it.

Finally, in KO (Nigeria) (Appellant) v Secretary of State for the Home Department (Respondent) the court will consider 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 (with whom the foreign criminal has a parental relationship) is “unduly harsh” under s.117C(5) of the Nationality Immigration and Asylum Act 2002 / para 399 of the Immigration Rules. The Appellant is a national of Nigeria. He came to the UK illegally in 1986. He has a wife and five children. His wife and her eldest daughter have indefinite leave to remain and the four other children are British citizens. He was convicted of conspiracy to make false representations and sentenced to 20 months’ imprisonment. The Secretary of State made the decision to deport him. He appealed to the First-tier Tribunal who allowed his appeal on the basis that he fell into the exception provided for under s.117C(5) the Nationality Immigration and Asylum Act 2002 / para 399 of the Immigration Rules as the effect of his deportation would be unduly harsh on his children. The Respondent appealed to the Upper Tribunal which set aside this decision and remade it, dismissing the Appellant’s appeal on the basis that the First-tier Tribunal had failed to take into account the public interest in deportation when considering whether the effect of the Appellant’s deportation would be unduly harsh on his children. The Court of Appeal upheld the decision of the Upper Tribunal.

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