Immigration: children who are eligible for leave to remain whose parents have been convicted of a crime

Case name: KO (Nigeria) & Ors v Secretary of State for the Home Department

Home Office policy says that children who are eligible to apply for leave to remain but whose parents are ‘foreign criminals’ must either be deported with the parent or remain in the UK without them. We are concerned that this breaches the child’s right to family life, and we intervened in a case seeking to challenge the Home Office policy.

Legal issue

Immigration rules: when is it reasonable to expect a child to leave the UK and can a court take parental misconduct into account?

Background

Under the immigration rules, a child who has lived continuously in the UK for at least seven years can apply for leave to remain and cannot be deported. In most instances, parents and siblings will be able to ‘piggy-back’ on the child’s rights and will also be entitled to stay. The exception to this is where the parent has been convicted of a crime or it is otherwise considered in the public interest to deport them. In these instances, under current Home Office policy the child must either be deported with their parent or stay in the UK without them. This case brings together six similar cases to clarify whether it is reasonable to expect a child to leave the UK with their parent, or whether the impact of deporting a parent would be unduly harsh on the child.

Why we were involved

Article 8 of Human Rights Act protects the right to private and family life. We are concerned that the Home Office’s policy of forcing a child either to leave the UK for a country and culture they may not know, or to stay in the UK without a parent, breaches that child’s Article 8 rights. As part of our work to support people whose rights have been breached, we hoped our involvement would lead to the Home Office changing its policy.

What we did

We used our power to intervene in the case, which allows us to provide the court with expert advice or evidence.

We advised the court on the interpretation of Article 3 of the UN Convention on the Rights of the Child, and the relevance of this to the proper interpretation of the right to respect for private and family life.

What happened

The case was unsuccessful. The court concluded that the Home Office’s policy was not unlawful. Two of the six cases were remitted to the Upper Tribunal for further consideration.

Who will benefit and how

Our remit is to uphold equality laws and the Human Rights Act for the benefit of all communities but particularly for the most vulnerable.

It is helpful to clarify the law in respect of children who may be entitled to remain but whose parents are to be deported.

This case showed that a parent’s behaviour is not relevant to assessing whether it is reasonable for a child to have to leave the UK.

We remain concerned that immigration rules applied to parents may breach a child’s rights and we will continue to support individuals where this is the case.

Date of outcome