Supreme Court clarifies meaning of “reasonableness” and “unduly harsh” in children’s cases

An interesting judgment was handed down in KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53 where the question of “reasonableness” and “unduly harsh” when assessing the effect of deportation on a child was answered.

It has been clearly set out in s117C of the Immigration Act 2014 that it will be in the public interest for foreign criminals to be deported, the more serious the offence the higher public interest. The prime question is – will it be “unduly harsh” to deport a qualifying child  (child with more than 7 years of residency in the UK) of the foreign criminal? It was held that the Tribunal should not take into account parental misconduct but should carry out a more child-focused assessment. The phrase “unduly harsh” requires to focus on a more serious impact on the child, an impact that is severe. This essentially brings beneficial consequences because a child should not be held responsible for the conduct of the parent.

S117(6) of the Immigration Act 2014 focuses on those who are not liable to deportation. It is set out that the public interest does not require a removal so long as the person is a parent of a qualifying child and it would not be reasonable for the child to leave the United Kingdom. The same approach of assessing “unduly harsh” should be used to assess “reasonableness” namely the criminal or misconduct of the parent should not be taken into account.

It is enlightening to see the court provide a clear assessment that portrays the importance of the principle that children should not be held responsible for the conduct of their parents. The case of KO provides reassurance to families and properly promotes the best interest of the child.