In early December last year it was indicated
here that the UK Supreme Court was to provide guidance as to the correct approach both generally to the rights of children affected by immigration decisions and specifically so far as cases where families including children who are British nationals are concerned.
The Supreme Court delivered its judgment on Tuesday 1 February 2011.
The case highlights a syndrome which is not unusual in immigration cases - where a decision is taken to remove the parent of a child who, due to his or her other parent being British or having indefinite leave to remain in the UK, is a British citizen. Such children can't of course be deported - but the effect of a decision to deport a child's mother or father will frequently (if not always inevitably) mean that the children are "constructively deported" despite the fact that they are British nationals.
As the only case at Supreme Court level providing guidance specifically on the duty to protect the best interests of the child, particularly with reference to the importance to be placed on the child's British nationality, the judgment in
ZH (Tanzania) v SSHD [2011] UKSC4 is particularly important for immigration lawyers, family lawyers and social services departments who have an interest in the welfare of children whose parents face removal from the UK. However, it also has implications for the approach to be adopted in other fields, including in criminal law, where the issue of separation of children from a parent is being considered.
ZH is the Tanzanian mother with her two British children, born of a British father in the United Kingdom. The Supreme Court granted the children permission to be joined in her appeal as interveners.
The main issue concerned the weight to be attached to the best interests of a child when a parent or parents are to be removed from the UK and, more specifically, the importance to be attached to rights flowing from British citizenship when considering whether or not the Tanzanian mother, who had no rights to remain in the UK, should be removed. The parents were not living together but the father regularly visited the children and therefore played a meaningful role in their lives. He was an alcoholic suffering from HIV and could not reasonably be expected to visit the children if they were forced to go with the mother.
Shortly before the hearing, the Secretary of State accepted that on the facts, the Asylum and Immigration Tribunal had been wrong to dismiss the mother's appeal under Article 8 ECHR and also that the Court of Appeal wrongly upheld the Tribunal's determination. The purpose of the hearing before the Supreme Court was to give guidance on the issues.
The leading judgment was given by Lady Hale. The Court focussed on the UK's commitment to the
United Nations Convention on the Rights of the Child 1989 and in particular to the requirement in the Convention's Article 3, that the best interests of the child shall be a primary consideration in all decision-making.
That commitment – described by Lady Hale in the Supreme Court as "a binding obligation in international law" has been translated into UK legislation. Until 2008 the UK had a reservation to the United Nations Convention on the Rights of the Child in immigration matters but this reservation was lifted in 2008, resulting in section 55 of the Borders, Citizenship and Immigration Act 2009 which seeks to implement the article 3 duty by ensuring that in her immigration decisions the Secretary of State for the Home Department will
safeguard and promote the welfare of children.
The Court held that in certain types of decisions which directly affect a child's upbringing, the protection of the child's best interests would be the determining factor. However, in the case of other decisions which indirectly affect a child, such as decisions as to where the parent or parents are to live, the best interests of the child is a primary consideration. (This will include decisions to detain or imprison a child's parents).
The Court went on to assess how the best interests of children should be evaluated in the context of separated families, various General Comments of the United Nations Committee on the Rights of the Child, and various decisions of international courts.
The court held the correct approach to be that taken by the Federal Court of Australia in
Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568. Decision makers, and the Courts charged with considering appeals against their decisions, should apply the principle that in such cases the starting point is that the children's best interests must be a primary consideration. The next question would be whether their best interests are outweighed by the strength of any other considerations, including the demands of immigration control.
Where the children were British nationals, that was a very significant and weighty factor which had an ‘intrinsic' and ‘particular importance' in the assessment of the children's best interests. It was therefore necessary to take into account that the children stood to lose the UK's protection and its support, socially, culturally and medically, and in many other ways. It was necessary to take into account the resultant social and linguistic disruption of their childhood, the loss of their homeland, the loss of educational opportunities available to them in the UK, and the resultant isolation from the normal contacts of children with their father and their father's family.
The Court also noted that the Court of Appeal had wrongly endorsed the Asylum and Immigration Tribunal's decision to assess the reasonableness of the children living in Tanzania with their mother in the light of the fact that the mother's immigration history was appalling and that the children had been conceived by her in the knowledge that her immigration status in the UK was precarious. The Court held that this should not have diminished the children's interests simply because they could not be blamed for what their mother had done.
As Lord Hope put it: "
It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible".
This principle, of not visiting the sins of the parent on the child, may well have importance in other areas of law.
On the facts the Court held that despite the mother's "appalling immigration history", the best interests of the children were such that there could only be one outcome and the Tribunal ought to have allowed the mother's appeal against the Secretary of State's decision to remove her.