Case No. UKUT-00129-(IAC)

107. Section 117B(6) of the 2002 Act provides that: (6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom. 108. Section 117B(6) of the 2002 Act is a self-contained provision, such that where the conditions specified therein are satisfied the public interest does not require the person’s removal . See MA (Pakistan) & Ors v Upper Tribunal [2016] EWCA Civ 705. 109. The respondent accepts that the appellant meets the condition in 117B (6)(a). The respondent also accepts that it would not be reasonable to expect the appellant ’ s daughter to leave the UK indefinitely . However, t he respondent argues that the condition in section 117B(6)(b) is not met because it would be reasonable to expect the appellant ’ s daughter to leave the UK temporarily whilst her mother makes an application for entry clearance from Pakistan . 110. Section 117B(6) (b) requires a court or tribunal to assume that the child in question will leave the UK : Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 00072 (IAC). However, o nce that assumption has been made, the court or tribunal must move from the hypothetical to the real : paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53 . The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK. 111. A court or tribunal must base its analysis of reasonableness on the f acts as they are (having assumed, for the purpose of this analysis, that the child will leave the UK with his or her parent or parents). The “real world ” co ntext includes consideration of everything relating to the child, both in the UK and country of return, such as whether he or she will be leaving the UK with both or just one parent ; how removal will affect his or her education , health, and relationships with family and friends ; and the conditions in the country of re turn . The conduct and immigration history of the child’s parent(s) , however, is not relevant. See KO at paras. 16 – 18. 112. The “real world” circumstances in the country of return may be significantly different if a child will be outside the UK only temporarily rather than indefinitely . For example , when a child will be leaving the UK indefinitely the availability and adequacy of education in the destination country m ight be highly relevant to whether it is a reasonable to expect the child to relocate to that country. On the other hand, if the child will be leaving the UK for only a few months, it is the disruption to his or her education in the UK that is likely to be more significant th a n the availability of suitable education in the country of return. 113. Both parties agreed that the length of time a child will be outside the UK is part of the real world factual circumstances in which a child will find herself and we were not presented with (and cannot conceive of ) any good reason why this should not be the case. Accordingly , whether it would be reasonable to expect the appellant’s daughter to leave the UK is to be assessed on the basis of our finding of fact that she will be outside the UK , with the appellant, for 4 - 9 months. 114. Mr Sarwar argued that it would not be reasonable to expect the appellant’s daughter to leave the UK for even a short period because she would be without her father and step - siblings ; would be unable to access the UK education and health system , and would face emotional turmoil from being uprooted . In addition, he submitted that she would face a challenging environment in Pakistan because the appellant has never lived there and would n ot have family or other support . Mr Sarwar relied on the respondent’s policy as set out in the document titled F amily Policy: family life ( as a partner or parent) , private life and exceptional circumstances dated 10 December 2019 which states at page 50 that the respondent “ would not normally expect a qualifying child to leave the UK ” . 115. Mr Lindsay argued that it is not un reasonable for the appellant’s daughter to be separated from her father and step siblings for only a short period and that there would not be a significant disruption to her education (as she has not yet started school) or healthcare provision ( as the evidence is that she is healthy) . He also submitted that the circumstances in Pakistan would not be hars h ; and the appellant’s daughter would be with her primary carer, in the country of her mother’s nationality where extended family live. 116. We do not accept Mr Sarwar’s contention that the appellant’s daughter will face emotional turmoil as a result of spending up to nine months in Pakistan . She is a young child who will be with her mother ( who is her primary carer) in the country of her mother’s citizenship. Although the appellant has not lived in Pakistan, she is familiar with the culture, environment, societal norms and has extended family. The evidence does not indicate that Pakistan would be a difficult or harsh environment for the appellant’s child . She has not yet started school, so there will be no disruption to her education . Nor is there a reason to believe that spending a period of time in Pakistan will be detrimental to her health as there is no evidence before us that she has any medical problems. 117. The appellant’s daughter will be separated from her father and step siblings . However , the separation will only be temporary, during which time she will be able to remain in contact with them through telephone, skype and other means of communication (and her father could visit her). As we have explained above, whilst we consider that it would be in her best interests to not have to relocate to Pakistan without her father, we are equally of the view that she w ill not suffer a ny detriment by doing so, given her young age and the temporary nature of the separation. Although the daughter will be temporarily removed from nursery school, there is no evidence to justify the conclusion that this will have any materially adverse effect on her education and general development. Taking all of these factors into consideration, we are satisfied that it would not be unreasonable to expect the appellant ’ s daughter to leave the UK for a temporary period whilst her mother applies for entry clearance .