Section 117B(6) of the 2002 Act and the public interest in removal of a parent of a 'qualifying child'

Following the insertion of sections 117A-C into the Nationality, Immigration and Asylum Act 2002, where a court or tribunal is required to determine whether a decision made under the ‘Immigration Acts’ breaches a person’s right to respect for private and family life under Article 8, the court or tribunal must have regard to a series of statutory considerations set out in primary legislation when considering the public interest question. The ‘public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC), reported on 10 December 2015, is the latest in a series of reported cases concerning the interpretation of sections 117A-C of the 2002 Act.  For previous determinations relevant to sections 117A-C see Forman (Sections 117A - C considerations)AM (Section 117B) Malawi,Deelah and Others (section 117B - ambit), and Bossade (ss.117A-D-interrelationship with Rules).

In Treebhawon the Upper Tribunal has specifically addressed section 117B(6).  Section 117B(6) is applicable in non-deportation cases, where a person liable to removal has a genuine and subsisting parental relationship with a 'qualifying child' (‘qualifying child’ means a child under the age of 18 and who is a British citizen, or has lived in the United Kingdom for a continuous period of seven years or more), and it would not be reasonable to expect that child to leave the UK.  In such cases, the public interest does not require the person's removal from the UK.

The question explored by the Upper Tribunal at paragraph 14 of its determination was:

'In a case where a Court or Tribunal decides that a person who is not liable to deportation has a genuine and subsisting parental relationship with a qualifying child, as defined in Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended, and it would not be reasonable to expect such child to leave the United Kingdom, with the result that the two conditions enshrined in section 117B(6) are satisfied, is this determinative of the "public interest question", namely the issue of proportionality under Article 8(2) ECHR?' [Emphasis added]

In short, the answer to this question was 'yes', if the conditions in section 117B(6) are satisfied, then this is determinative of the public interest question.

In paragraph 21, the Upper Tribunal found that 'the underlying Parliamentary intention is that where the three aforementioned conditions are satisfied the public interests identified in section 117B(1) - (3) do not apply.'

The Upper Tribunal went on to discuss the effect on section 117B(6) in circumstances where sections 117B(4)-(5) are engaged, however declined  to provide a definitive answer to this discrete issue as it lay outwith the ambit of the grant of permission to appeal.   The Upper Tribunal did make the following observations however:

'It would further appear that the "little weight" provisions of section 117B(4) - (5) are of no application. If Parliament had been desirous of qualifying, or diluting, section 117B(6) by reference to either section 117B(4) or (5), it could have done so with ease. It has not done so. Fundamentally, there is no indication in the structure or language of Part 5A that in cases where, on the facts, section 117B(4) and/or (5) is engaged, the unambiguous proclamation in Section 117B(6) is in some way weakened or demoted.' [Emphasis added]

Some commentary from paragraph 19 in relation to the best interests of children is also worth mentioning as a final point:

'The most striking feature of this discrete public interest [section 117B(6)] is its focus on one of the most vulnerable cohorts in society, namely children. The focus is placed on the needs and interests of these vulnerable people. Furthermore, the content of this public interest differs markedly from the other three, all of which are focused on the interests of society as a whole. In enacting Section 117B(6), Parliament has given effect to a public interest of an altogether different species. Notably, this new statutory provision is closely related to and harmonious with what has been decided by the Upper Tribunal in a number of cases, namely that there is a free standing public interest in children being reared within a stable family unit. The effect of Part 5A of the 2002 Act is, of course, that this discrete public interest must yield to more potent public interests in certain circumstances.'