Kaur and the ‘Sins of the Parent’
In the case of Kaur (children's best interests / public interest interface) [ UKUT 00014 (IAC)](https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-14) the Upper Tribunal adds to the already copious body of case law relating to the best interests of the child in immigration cases.
The facts of the case are depressingly familiar. Ms. Kaur, an Indian national, was in the UK without leave. She had two children with her partner who was also in the country unlawfully. An application was made by Ms. Kaur to regularise her stay, relying in part on the length of residence of her children, which the Home Office refused. An appeal was mounted and dismissed by the First-Tier Tribunal before it arrived on the desk of President McCloskey J in the Upper Tribunal.
During the hearing the President agreed to a last-minute variation of the grounds of appeal, permitting Ms. Kaur to argue that the lower tribunal’s assessment of the best interests of her children had been infected by her and her partner’s misconduct (by illegally overstaying in the UK). Ms. Kaur’s lawyers submitted that this fell foul of the seventh principle set out in Zoumbas  UKSC 74, that ‘a child should not be blamed for matters for which it is not responsible, such as the conduct of a parent’.
In a meandering review of the current state of the law in this area, McCloskey J finds that the principle remains true, notwithstanding the introduction of Part 5A of the Nationality, Immigration and Asylum Act 2002, and that judges should first assess the question of the best interests of the child in isolation from other factors (such as parental misconduct). However, he also finds that parental misconduct may be a factor in the final proportionality balancing exercise (to be undertaken later) and ‘would not preclude an outcome whereby the best interests of the child must yield to the public interest’.
The judgment also considers the meaning of the phrase ‘little weight’ in the Part 5A provision that ‘little weight should be given to a…private life…that is established by a person at a time when they are in the United Kingdom unlawfully’. The President finds that what this means must be divined from the context in each individual case: it does not mean ‘no weight’, and could conceivably approach the weight of ‘notionally moderate’, at the upper end of the spectrum. Of similarly limited use is the finding which appears in the headnote, that in every balancing exercise ‘the scales must be properly prepared by the Judge, followed by all necessary findings and conclusions, buttressed by adequate reasoning’.
The President refers to the ‘library’ of caselaw on Part 5A, alluding presumably to the large amount of ink already spilled in attempting to understand these provisions, before adding to it. Of course, it is not the tribunal’s fault that the law in this area is so opaque. Those seeking to understand the relevance of this case may have struggled to wade through the determination, although any attempt at clarity is to be welcomed.
Main image credit: Photo by Annie Spratt on Unsplash