Supreme Court bolsters rights of children in deportation cases

1 February 2011 by Adam Wagner

Updated | ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment / press summary / our analysis

The Supreme Court has unanimously ruled that in cases where a parent is threatened with deportation, the best interests of their child or children must be taken into account, particularly when the children are citizens by virtue of being born in this country.

Following her leading judgment in last week’s domestic violence case, for which she has been dubbed the “Brilliant Baroness”, Baroness Hale has delivered another wide-ranging, principled judgment which will bring immigration courts into line with current thinking on child welfare and article 8 of the European Convention on Human Rights (the right to family life). The basic point is that children’s views must be taken into account, and this should include asking them what they think.

The appeal was brought by a Tanzanian failed asylum seeker who is the mother of two children, aged 9 and 12, whose father has HIV.  The question before the court was: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?

In this particular case, the court held that the mother will be allowed to stay in the UK despite her “appalling” immigration history, which included two asylum claims using a false name, as to remove her would amount to a disproportionate interference with her two children’s article 8 rights.

The court held that the best interests of a child must be taken into account in such cases, meaning the well-being of the child, and will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the child’s own views [para 29, 34 to 37].

It is not enough to say that a child may readily adapt to life in another country. The fact that s/he has grown up in this country will be of particular importance.

Summary

The following is based on the press summary provided on the Supreme Court website:

There is no power to remove or deport a person who is a United Kingdom citizen: see Immigration Act 1971, section 3(5) and (6). They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance: see 1971 Act, sections 1 and 2. The consistent stance of the Secretary of State is that UK citizens are not compulsorily removed from this country.

However, if a non-citizen parent is compulsorily removed and agrees to take her children with her, 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 children in this case are British not just through the “accident” of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. [30] – [31]

The intrinsic importance of citizenship should not be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults. [32]

In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could only be one answer. [33]

Lord Hope observed that the fact of British citizenship will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose the benefits and advantages of this citizenship for the rest of their childhood. The fact that the mother’s immigration status was precarious when the children were conceived cannot be held against the children in the assessment of whether their best interests are outweighed by the strength of any other considerations. 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. [41], [44]

Lord Kerr stated that the fact that a child is a British citizen also has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child may live. [46] – [47]

Update – Rosalind English’s analysis is here.

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