Remembering when Adam Bernard Solicitors changed the law

Remembering when Adam Bernard Solicitors changed the law

On the 4th and 5th May 2016, the Court of Appeal heard MA (Pakistan) & Others v The Upper Tribunal (Immigration and Asylum Chamber). It’s judgement, reached on 7th July 2016, would change the landscape of how solicitors and caseworkers would approach immigration applications/appeals concerning children.

AZ (Pakistan) & Others was the 6th appellant in the above appeal. They were represented by Adam Bernard Solicitors who instructed counsel, Frances Shaw, in this hearing.

Facts of the Case

The facts of the case relating to our client start at paragraph 90 of the judgement. AZ entered the UK with her husband and eldest child in 2007 with entry clearance as a student.  She made subsequent applications to regularise her stay, all of which were rejected. Her last letter of refusal was dated 13.01.2014, a decision that she appealed. This was dismissed in the First-Tier Tribunal, but permission to appeal was granted to the Upper Tribunal ‘on the sole ground that section 117B(6) of the Nationality, Immigration and Asylum Act (NIAA) 2002 was arguably not properly applied’.

The decision of the Upper Tribunal’s Judge Perkins ultimately found against our client. It was held that ‘there was nothing in substance in the cases of the parents and the youngest child. The parents had remained illegally in the UK; and the child was still very small, and his private and family life was inextricably tied to his parents’. As LJ Elias states, the ‘case turned on the position of the elder son with autism and the impact that his removal would have’ on him.

Whilst Judge Perkins remained sympathetic to the circumstances of the eldest child, he concluded that ‘it was reasonable to expect the child to leave the United Kingdom’. He upheld that ‘people (who) enter the United Kingdom on a temporary basis should expect to leave at the end of it and the fact that one of them has a particular social need does not change that’.

We thus arrive at the Court of Appeal, where Adam Bernard Solicitors challenged the decision of Upper Tribunal on the basis that they had failed to properly apply section 117B(6) of the 2002 Act.

Legal Framework

The case centred on Article 8 considerations due to the 7-year rule found at paragraph 276 ADE(1)(iv) of the Immigration Rules.

In order to give the reader some background to the case, it is first necessary to describe the legal framework that surrounds the cases put forward in this hearing. Paragraph 276 ADE(1)(iv) of the Immigration Rules reads as follows:

The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; 

The central issue that confronted the court when interpreting this piece of legislation was ‘whether the courts are constrained in the way they must approach the public interest balancing exercise where the best interest of the child has to be considered in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009’. Essentially, this boils down to whether it would be considered reasonable to expect the applicant (child) to leave the UK after having lived here for 7 of their formative years.

Article 8 of the European Convention on Human Rights is a qualified article, meaning that the rights granted to individuals in 8(1) can be derogated from under 8(2) in certain circumstances. These ‘circumstances’ are those that are within the interest of society (i.e. public interest). Whilst a seemingly broad notion, guidance to how the courts are to interpret this subsection is found in s117B of the NIAA 2002 (now in the Immigration Act 2014). s117B(6) states the following:

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

  1. the person has a genuine and subsisting parental relationship with a qualifying child, and
  2. it would not be reasonable to expect the child to leave the United Kingdom

‘Qualifying Child’

The definition of a ‘qualifying child’ is found at s117D:

“qualifying child” means a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more

Application of the ‘reasonableness’ requirement

In paragraph 23, LJ Elias cites the precedent established in ZH (Tanzania) v SSHD [2011]. This decision stated that where a ‘qualified child’ is involved, the ‘best interests of that child is the primary consideration’ the courts are obligated to have. Whilst LJ Elias states that there was consensus on either side of this hearing that the interests of the child will bear relevance when discussing the ‘reasonableness’ requirement, there was ‘divergence’ on ‘what factors could be considered’ alongside this consideration.

Mr. Gill QC, counsel for AP (another individual involved in the hearing), stated that ‘the best interests of the child and the reasonableness or otherwise of expecting the child to leave the UK are but two sides of the same coin’. This argument can be summarised as follows: If it is in the best interest of the child to stay in the UK, then it will only ever be reasonable if they are able to do so.

Mr. Knafler QC (counsel for 3 Sri Lankan individuals) ‘did not go that far’. He felt that there are times when it is in the best interest of the child to remain in the UK, however it might be unreasonable for them to do so. However, like Mr. Gill, Mr. Knafler QC did state that the court must focus solely on the position of the child and that the conduct and immigration history of the parents ‘were immaterial’.

Ms Giovannetti QC, acting for the Secretary of State stated:

(that the above) analysis is misconceived and would lead to a much more generous approach to these applications than parliament could have intended…(whilst) the fact that the child has been resident for seven years will be a factor which must be given significant weight…it does not modify or distort the usual Article 8 proportionality assessment’.

LJ Elias stated that he can ‘see no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as an overall analysis of the public interest’. He accepts that this ‘may result in some cases in undeserving applicants being allowed to remain’ but states that were the parents’ cases handled properly, a deportation order would have been issued already, thereby avoiding s177B(6) from being a point of discussion.

Ultimately, these comments from LJ Elias are obiter as he refuses to depart from the precedent established in MM (Uganda). He states that ‘it would not be appropriate to distinguish that decision simply because I have reservations about whether it is correct’. He therefore concedes to the argument relied on by Ms. Giovannetti QC.

Nevertheless, it is still held that a child who has been here for a minimum of 7 years will be given ‘significant weight’. LJ Elias lays reference to the Immigration Directorate Instructions, “Family Life (as a partner or parent) and Private Life: 10-year routes”, that states that where a child has lived in the UK for 7 years, there must be “strong reasons for refusing leave (as)…After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it would be highly disruptive if the child is required to leave”.

Decision

The decision from the Court of Appeal regarding AZ begins in paragraph 100 of the judgement. LJ Elias reaffirmed from the above discussion that it is the court’s duty to consider the wider public interest of granting AZ leave and not solely focus on the needs of the child. Therefore, the immigration status and history of the parents will be an issue of consideration when deciding the case’s outcome.

However, LJ Elias is emphatic in his judgement in favour of the appellants. He states that was the child removed to Pakistan given his condition, it would result in ‘overwhelming and permanent harm’ causing ‘consequences that would be little short of catastrophic’. It is clear that the autism of the child was a significant factor and was it not for this factor ‘there would be a strong case for saying it would not be unreasonable to expect him to leave’.

The court was critical of the judge’s reasoning that to grant AZ leave would be ‘treating him as a citizen of the UK’ as a reason for dismissing the appeal. In this instance, LJ Elias stated as follows:

“It is pertinent to note that qualifying children are UK citizens or those with 7 years residency. It is not surprising, therefore, that they might be treated in a similar way”

It goes onto state that the very intention of the 7-year rule is that the qualified child ‘is not blamed for the fact that their parents overstayed illegally’:

“The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child’s 7 years of residence is a significant factor pointing the other way

For the reasons given above, the court found in our client’s favour.

Significance of the Judgement

The success of Adam Bernard Solicitors in this case ensured that the rights of children are afforded greater protection under British law. It helped to clarify an area of law that had previously been open to interpretation and which had led to a lack of consistency in judgements and a lack of protection for minors.

That the judgement assimilated the rights of migrant children who have lived in the United Kingdom for 7 years as demanding ‘similar’ considerations as British citizen children underlines the power of this judgement. It has shown that the interests of the child in such cases need to be given primary consideration and that only in extreme cases will the immigration history and personal conduct of the parents negate a child’s success under this route. This judgement has been reported in many different publications, and the comments that the judges made have been used in support of numerous applications to safeguard the rights of children. The success of this landmark decision is testament to the hard work conducted by our offices and underlines our commitment to safeguard the rights of our clients

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