KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent)

Factual and Procedural Background

Four conjoined appeals reached the Supreme Court. All concerned the interaction between Article 8 of the European Convention on Human Rights and the statutory framework governing immigration control in the United Kingdom. Three appeals (brought by “Appellants KO, IT and NS”) turned on Part 5A of the Nationality, Immigration and Asylum Act 2002, specifically section 117B(6) (the “reasonableness” test) and section 117C(5) (the “unduly harsh” test). The fourth appeal (“AP”) involved the same issues in the different setting of paragraph 276ADE(1)(iv) of the Immigration Rules. Each appellant resisted removal or deportation on the basis that they had a qualifying child who was either a British citizen or had lived in the United Kingdom for seven years or more. The Secretary of State opposed the appeals, relying on the public interest in immigration control and, in some cases, the appellants’ criminal convictions.

Legal Issues Presented

1. Whether section 117B(6) and paragraph 276ADE(1)(iv) confine the tribunal to assessing only the position of the child, or whether parental misconduct and the wider public interest form part of the “reasonableness” inquiry.
2. Whether the phrase “unduly harsh” in section 117C(5) demands a balancing exercise that includes the seriousness of the parent’s offending, or is limited to an assessment of the impact of deportation on the child or partner.
3. The correct application of those tests to the individual facts of the KO, IT, NS and AP appeals.

Arguments of the Parties

Appellants’ Arguments

• The statutory wording shows that Parliament intended the tribunals to look exclusively at the child’s circumstances when applying the “reasonableness” and “unduly harsh” tests.
• Introducing parental criminality or immigration history would contradict the text and breach the principle that a child should not suffer because of a parent’s wrongdoing.

Respondent’s Arguments

• Both provisions require a proportionality assessment that weighs the child’s interests against the public interest in enforcing immigration control.
• Section 117C(2) expressly links the public interest to the seriousness of the offence, so the harsher the crime, the greater the hardship must be before deportation becomes “unduly harsh.”

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court viewed Part 5A as an attempt to simplify and narrow judicial discretion. It held that paragraph 276ADE(1)(iv) and section 117B(6) focus solely on the child’s circumstances; parental misconduct is relevant only to explain why the parent lacks leave to remain. For section 117C, Exceptions 1 and 2 are “self-contained”. Although “unduly harsh” sets a higher bar than “reasonable”, it does not entail a new balancing exercise based on the gravity of the offence; that gravity is already reflected in the statutory distinction between sentences below and above four years.

Applying these principles:

• KO: The Upper Tribunal was correct; the hardship to the children, though real, did not reach the elevated “unduly harsh” threshold.
• IT: The tribunals erred by treating British citizenship as an absolute bar to relocation and by relying on unproven evidence. Remittal ordered by the Court of Appeal was upheld.
• NS: The tribunal properly concluded that it was reasonable for the children to accompany their parents abroad; no error of law was shown.
• AP: The case was properly remitted for a fresh assessment; the tribunal on remittal must apply the clarified approach to paragraph 276ADE(1)(iv).

Holding and Implications

APPEALS DISMISSED. The remittal directions made in IT and AP remain in force.

Key implications:

• The “reasonableness” test (section 117B(6) and paragraph 276ADE(1)(iv)) is child-centred and excludes separate consideration of parental criminality or immigration history.
• The “unduly harsh” test (section 117C(5)) likewise centres on the child or partner but sets a substantially higher standard than mere undesirability; it does not require an additional balancing exercise based on the seriousness of the offence.
• The decision resolves conflicting approaches in earlier Upper Tribunal and Court of Appeal judgments and is expected to bring consistency to future immigration and deportation cases involving qualifying children.