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In NA (Bangladesh) v Secretary of State for the Home Department [2021] EWCA Civ 953 the appellants argued that, in the case of a child who has been resident in the UK for 7+ years and falls within s.276ADE(1)(v) of the Immigration Rules/s.117B(6) of the NIAA 2002 (“the seven year provision”), the starting point is that the child and his parents should be granted leave to remain unless there are powerful reasons to the contrary. It was said that such an approach was required by the decision of the Court of Appeal in MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705.
In a judgment handed down on 24 June 2021, the Court of Appeal disagreed, concluding that the relevant reasoning in MA (Pakistan) had not survived the Supreme Court’s decision in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, the effect of which was that where neither parent has leave to remain, the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the child to leave the UK with their parents. The seven-year provision does not therefore create a presumption in favour of the child, and thus their parents, being granted leave to remain.
The Court of Appeal was however careful to emphasise that the approach approved in KO (Nigeria) does not provide for a presumption in the opposite direction. It represents no more than a common-sense starting-point, and it remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents.
The judgment is available here.
The Secretary of State was represented by Hafsah Masood.
