United Kingdom: New judgments on returns for migrants with children

Date: 
Friday, April 12, 2019

On 12 April 2019, England and Wales Court of Appeal (Civil Division) released a judgment in the cases of AB (Jamaica) and AO (Nigeria) v. Secretary of State for the Home Department. The two separate appeals were brought by the Secretary of State against decisions made by the Upper Tribunal (Immigration and Asylum Chamber), which found that the public interest did not require the removal of the respondents, on the grounds of respect for family life under Article 8 of the ECHR and Sch. 1 of the Human Rights Act 1998.

The cases were examined with regard to Section 117(A) and (B) of Part 5A of the Nationality, Immigration and Asylum Act 2002, wherein the public interest does not require the removal of the individual from the State if the individual has a genuine and subsisting parental relationship with a qualifying child, and if it would not be reasonable to expect the child to leave the UK.

In the case of AB (Jamaica), the Court agreed with the ruling of the Upper Tribunal. It found that the immigration history of the parent to be irrelevant and found that it would not be reasonable to expect the child to leave the United Kingdom, and it was therefore not reasonable to expect the applicant to leave the country. In the case of AO (Nigeria), the Court rejected an appeal on Ground 3 for the same reasons as in the case of AB (Jamaica) in considering the ‘reasonable expectation’ in the parent’s departure from the State. The Court permitted appeals on Ground 1, on the gravity of impact on rights under Article 8, on Ground 2, in consideration of the question of public interest under Article 8(1), and on Ground 4, on the meaning of "a genuine and subsisting parental relationship with a qualifying child" in section 117B(6)(a).

These rulings were based on domestic case law and upheld the previous ruling in the case of J.G. v. Secretary of State for the Home Department from February 2019. This case came to a similar conclusion to that of above, and held that Section 117B(6) requires a court to consider the hypothetical situation that the child would leave the UK and ask whether this departure was “reasonable”. The three above-mentioned cases have been examined following the landmark ruling in the Supreme Court case of KO (Nigeria) v. Secretary of State for the Home Department.


This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

                                                     

 

Keywords: 
Family unity (right to)
Personal circumstances of applicant