The UK Supreme Court has found that the misconduct of a parent should not be considered in assessing whether a non-British child should be permitted to remain in the UK.
This judgement was the result of the consolidation of four cases in which the appellants sought permission to remain in the UK on the basis of the relationship with their child.
The Court was asked to determine in what circumstances it is unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under a test in the Immigration Rules known as the ‘7 year rule’. This rule also allows for a parent to be permitted to remain in the UK where there is a ‘genuine and subsisting parental relationship’ with that child, and the effect of the parent’s removal would be ‘unduly harsh’ on the child.
The Court then had to consider whether a court or tribunal should take into account parental misconduct – such as a criminal act or immigration-related misdemeanour – as part of the wider public interest when assessing the effect of the deportation of a parent on a child.
In delivering a unanimous decision, the Supreme Court found that the 7 year rule did not require the consideration of parental misconduct, and such a requirement could not be read in by implication. The primary question should be what is reasonable for the child, but this must be viewed within the context of the family. Therefore the Court stated that the location of the parent is inevitably relevant, and whether that parent is lawfully present in the UK.
The Court upheld the decision in Zoumbas v Secretary of State for the Home Department which found that the best interests of the child requires that a child should not be blamed for matters for which it is not responsible, such as the conduct of a parent. The Court went on to state that if parental misconduct was to be factored into the assessment of whether deportation was ‘unduly harsh’, it may be that “what is deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug dealer”.
In terms of whether circumstances are unduly harsh, the Court concluded that the severity of the parent’s offence was not relevant. The assessment should be based solely on the best interests of the child.
Click here for the decision in KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department.