Introduction

The case of JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 (IAC) adjudicated by the Upper Tribunal (Immigration and Asylum Chamber) on February 26, 2019, presents significant insights into the interpretation of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002. The appellant, a Turkish national, sought to remain in the United Kingdom (UK) based on her genuine and subsisting parental relationship with her children, arguing that it would not be reasonable to expect her children to leave the UK if she were removed. This case explores the balancing act between immigration control and the rights of families under Article 8 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Upper Tribunal upheld the appellant's appeal, overturning the First-tier Tribunal's dismissal. The central issue revolved around the interpretation of Section 117B(6), particularly whether the assessment of 'reasonableness' to expect a child to leave the UK upon a parent's removal should hypothesize the child's departure irrespective of its likelihood. The Tribunal concluded that under Section 117B(6), tribunals must indeed hypothesize the child's departure and assess its reasonableness, leading to the affirmation of the appellant's right to remain in the UK with her children.

Analysis

Precedents Cited

The judgment extensively references prior case law to frame its reasoning:

• MA (Pakistan) & Ors v Upper Tribunal [2016] EWCA Civ 705: Established that Section 117B(6) operates as a self-contained provision, mandating the absence of public interest in removal once specific conditions are met.
• MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450: Affirmed that the immigration history of the parent is relevant in determining the reasonableness of expecting the child to leave the UK.
• KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53: Further clarified that the reasonableness inquiry under Section 117B(6) should consider the real-world context, particularly the immigration status of the parents.
• ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4: Emphasized the primacy of the child's best interests in immigration decision-making, outlining factors like education, social ties, and cultural integration.

Legal Reasoning

The Tribunal dissected Section 117B(6), focusing on whether it requires tribunals to hypothesize the child's departure regardless of its likelihood. Drawing from KO (Nigeria), the Tribunal inferred that while the section mandates considering what would be reasonable if the child were to leave, it does not require consideration beyond the hypothetical scenario. This interpretation aligns with statutory construction principles, emphasizing the plain language of the statute over internal Department of the Home Department (DHD) instructions.

The Tribunal scrutinized the appellant's actions, particularly her unlawful entry and subsequent deceptive visa applications, finding her behavior "dishonest and unscrupulous." However, recognizing the paramount importance of the children's best interests, the Tribunal balanced her misconduct against the potential disruption to the children's education and social environment.

Impact

This judgment reinforces the necessity for tribunals to independently assess the reasonableness of expecting a child to leave the UK, based on hypotheticals rather than actual likelihoods. It underscores the importance of the child's best interests as per Article 8 of the ECHR, ensuring that immigration decisions do not disproportionately disrupt family life. Future cases will likely reference this judgment when interpreting Section 117B(6), ensuring consistency in evaluating the conditions under which removal is deemed necessary.

Complex Concepts Simplified

Section 117B(6): A provision within the Nationality, Immigration and Asylum Act 2002 that allows the UK government to retain individuals in the UK if their removal would not be required by public interest, particularly when they have a genuine parental relationship with a child.

Reasonableness Enquiry: A legal assessment to determine if it is fair or sensible to expect a certain action—in this case, whether a child should leave the UK if a parent is removed.

Article 8 of the ECHR: Protects the right to respect for private and family life, ensuring that immigration decisions do not unjustifiably interfere with family unity.

Proportionality Test: A legal principle requiring that any interference with fundamental rights must be proportionate to the aim pursued, ensuring that measures are not excessively restrictive.

Conclusion

The Upper Tribunal's decision in JG v Secretary of State for the Home Department serves as a pivotal reference in interpreting Section 117B(6) of the Nationality, Immigration and Asylum Act 2002. By affirming that tribunals must hypothetically assume a child's departure and assess its reasonableness independently of actual likelihoods, the judgment ensures a more consistent and fair application of immigration laws. Furthermore, it reinforces the paramount importance of the child's best interests, aligning legal outcomes with humanitarian considerations under Article 8 of the ECHR. This case sets a clear precedent for future immigration appeals involving family life, safeguarding the rights of children and promoting the integrity of the UK's immigration system.