The Court of Appeal's judgment in AJ v Secretary of State for the Home Department [2011] EWCA Civ 1081 (21 September 2011) highlights the ongoing impact of the Supreme Court's judgment in ZH (Tanzania) v Secretary of State [2001] UKSC 4 in February of 2011.
In ZH Tanzania the Supreme Court held that the United Kingdom's commitment to the United Nations Convention on the Rights of the Child was a binding obligation in international law and that therefore the Secretary of State's duty, contained in section 55 of the Borders, Citizenship and Immigration Act 2009, to ensure that any function relating to immigration is discharged “having regard to the need to safeguard and promote the welfare of children”, extended to making the best interests of children a primary consideration in any immigration decision which affected children.
This was AJ, a Nigerian man's appeal to the Court of Appeal against a refusal by a judge in the Administrative Court to grant his application for judicial review of the Secretary of State's decision to refuse his application for leave to remain in the United Kingdom.
AJ had entered the UK in 1990 as a student. He had then “overstayed” for several years, during which he developed a relationship with a British citizen. They had two children. In 1997 AJ had been deported to Nigeria after being convicted for shoplifting. However he had then returned illegally to live in the UK with his partner and their children.
He had then applied for leave to remain in the UK, which the Secretary of State refused. Because she did not decide to remove AJ from the UK at the same time, he was not allowed to appeal against the refusal of leave to remain to the First Tier Tribunal. So instead AJ applied for judicial review. His application was refused, but some time later the Court of Appeal granted his application for permission to appeal saying that it was necessary to decide whether the Secretary of State's obligation under section 55 of the 2009 Act applied equally to unappealable decisions like that in AJ's case as it did where the Secretary of State was making a decision to remove someone from the UK.
In July of 2011 the Secretary of State granted AJ leave to remain in the UK. She then said that since he now had permission to live in the UK the appeal before the Court of Appeal was “academic”. However, the Court decided that the issue was sufficiently important to require it to be decided.
What eventually happened is that via her representative the Secretary of State conceded before the Court of Appeal that in all decisions where children were affected, including those decisions like hers in respect of AJ, the section 55 duty applied. The decision to refuse AJ's application was therefore quashed by the Court of Appeal.
That the Secretary of State had to concede this point in this case shows quite how much ground has been covered since 2009, when ZH's appeal before the Court of Appeal was dismissed. Back then the current thinking was that since ZH's two children had been born when ZH's immigration status in the UK was “precarious” they could simply follow their mother to Tanzania when she was removed. The fact that they were British nationals was a mere detail.