Update: immigration

The impact of children in the UK on the assessment of the proportionality under article 8 of decisions to remove or deport individuals or families has resulted in a number of important cases bringing into sharp relief the wide range of factors that are to be considered and the emphasis that is to be placed on the best interests of the child.

The headnote of LD (article 8 '“ best interests of the child) Zimbabwe [2010] UKUT 278, which was heard in July 2010, set out in broad terms the factors to be considered:

1. Consistent application of the Immigration Rules to promote the economic and social policy of the UK is a relevant factor in carrying out the balancing exercise under article 8(2) but the weight attached to it depends on the context of the case, whether there was ever any claim under the rules for indefinite leave to remain, and why such claim was not accepted.

2. In the particular circumstances of this case, the weight to be attached to enforcement of immigration control was small in the light of the misdirection as to paragraph 320 (7A), and the fact that the paragraph applies to all cases whether there is family life deserving respect or not.

3. The interests of minor children and their welfare are a primary consideration. A failure to treat them as such will violate article 8(2).

4. Weighty reasons are required to justify separating a parent from a lawfully settled minor child or child from a community in which he or she had grown up and lived for most of his or her life. The general situation in the relevant home country is also relevant, especially if it is known that the conditions there are dire (as they are, for example, in Zimbabwe at present).

5. In this case, no useful purpose would have been served if the appellant is required to depart the UK to make an entry clearance from abroad. All the issues are to be determined in this appeal rather than in the course of an investigation abroad where there would in any event be an interference.

This approach was given additional weight later in the year in R (on the application of TS) v Secretary of State for the Home Department and Northamptonshire County Council [2010] EWHC 2614 (Admin), which held that the decision to remove the claimant (a minor from Afghanistan) was a function within section 55 of the Borders, Citizenship and Immigration Act 2009.

Primary consideration

There is a duty on the decision maker '“ whether it be the UKBA or the IAC '“ to have regard to the safety and promote the welfare of the minor. The UKBA is required to consider and take into account the guidance issued in 2009 under section 55 (Every Child Matters: Change for Children) namely to have regard to the need to safeguard and promote the welfare of the child as a primary consideration unless there are cogent reasons to justify departure from this approach.

In R (on the application of MXL and others) v Secretary of State for the Home Department [2010] EWHC 2397 (Admin), Blake J notes the removal of the immigration reservation to the 1989 UN Convention on the Rights of the Child and that under article 3 of the convention 'in all actions concerning children, whether undertaken by'¦ courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'.

Such primary consideration is to be applied by public officials in decisions that impact on the welfare and best interests of a child. This does not amount to a determinative consideration but it must be of first importance.

In AK (Israel) v Secretary of State for the Home Department [2010] CSIH 98, it was held that the requirement to treat the child's interest as a primary consideration in accordance with article 3 of the UN Convention on the Rights of the Child was not met merely by considering best interest as a relevant consideration; it was a consideration that should be afforded a prominent or important status in the decision-making process even if it was not determinative.

Not to blame

And then there is the authoritative ZH (Tanzania) v SSHD [2011] UKSC 4 on 1 February 2011. The appellant in this case had an appalling immigration history but she also had two British citizen children who saw their father regularly even though they did not cohabit. In her appeal against removal there was again reference to article 3 of the UNCRC, now embodied in section 55 of the Borders, Citizenship and Immigration Act 2009.

Lady Hale sets out the critical issue that if a parent is removed or deported and agrees to take her children with her (whether they are British citizens or not), the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views. The overarching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents. Best interests of the child broadly means the well being of the child and a consideration of where those best interests lie will involve asking whether it is reasonable to expect the child to live in another country.

Lady Hale makes clear that nationality is not a 'trump card' but is a significant factor '“ as citizens the children have rights that they would not be able to exercise if they moved to another country and they would lose the advantages of being brought up and educated in their own country, their own culture and their own language. Lord Hope refers to it being wrong in principle to devalue what is in the best interests of the children by something (their mother's appalling immigration history) for which they could not in any way be held responsible.

Since then there have been cases before the Court of Appeal which have looked at the very difficult issues that arise where British children are affected by the proposed deportation of a parent following conviction for very serious criminal offences.

In Lee v SSHD [2011] EWCA Civ 348 (an appeal against a refusal to revoke a deportation order following conviction for serious drugs offences and a seven-year prison sentence) the Court of Appeal held: 'The tragic consequence is that this family, shortlived as it has been, will be broken up forever because of the appellant's bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but whether it does so is a question for an immigration judge.'

Different perspective

Two other cases that have significance as regards children, although from different perspectives, are DS (Afghanistan) v SSHD [2011] EWCA Civ 305 and Zambrano C-34/09 delivered on 11 March 2011.

In Zambrano the ECJ concluded that article 20 of the Treaty on the Functioning of the European Union grants a right of residence under EU law to a minor child on the territory of the member state of which that child is a national, irrespective of the exercise of previous free movement, and enables the grant of a derived right of residence to an ascendant relative (third country national) upon whom the minor child is dependant.

The essential elements of this very brief decision appear to be that the child must be dependant and the rights of the third country national parent are derivative, maybe requiring the child to continue in education. It remains to be seen to what extent this has an effect in deportation proceedings, although it seems likely that the effect in terms of removal could be extensive.

DS (Afghanistan) considered whether the secretary of state is under a duty to enquire whether, for an unaccompanied minor, there would be adequate reception facilities if the minor is returned to his or her country of origin and whether the results of such enquiries should be taken into account when considering an asylum claim by an unaccompanied minor.

It was held that regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 which transpose article 19.3 of the European Directive 2003/9/EC place the secretary of state under a 'plain duty'¦ to endeavour to trace the minor's family as soon as possible after the minor makes a claim for asylum'¦ The possibility and desirability of a safe return are factors which should be considered from the start.'

Pill LJ refers to Lady Hale in ZH citing article 3(1) of the UNCRC, section 11 of the Children Act 2004 and section 55 of the Borders Citizenship and Immigration Act 2009 and the 'need to 'safeguard and promote the welfare of children who are in the UK''¦ requires a proactive attitude to the possibility of return to a family'.

Pill LJ makes the point that lack of cooperation from a minor may be relevant as to what the secretary of state is required to do but it does not relieve the secretary of state of her duties. Lloyd LJ refers to the requirement that the IAC should consider the factors in section 55 of the 2009 Act, namely the need to safeguard and promote the welfare of the minor asylum seeker as a child in the UK.

These cases have a consistent thread running through them: that the welfare and best interests of the child are a paramount consideration and that full, rounded and proper consideration should be given to all of the factors in a case.