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Scottish court muddies the waters following KO (Nigeria)

17 December 2018 Personal Immigration Iain Halliday

In the recent decision of SA v Secretary of State for the Home Department [2018] CSIH 71  the Court of Session considers the correct approach to assessing whether it is reasonable to expect a child who has lived in the UK for seven years (or who is British) to leave the UK.

The Supreme Court recently considered this issue in KO (Nigeria) and concluded that, although a child-centred approach should be adopted, the immigration status of the child’s parents is indirectly relevant to the assessment. In SA the Court of Session adopts quite a restrictive interpretation of KO (Nigeria) reaching a decision which, at first sight, appears to contradict the Supreme Court’s requirement to adopt a child-centred approach. However on closer inspection there is no contradiction.

The apparent inconsistency is simply a symptom of the complex and nuanced nature of the reasonableness assessment which must be child centred and avoid blaming the child for the actions of the parents whilst simultaneously taking into account (albeit indirectly) the parent’s immigration status. For further detail see my recent post on the Free Movement blog. 

 

 

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