Welfare of child not a trump card against deportation

29 November 2013 by

aeroplane in sunset Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent) On appeal from the Inner House of the Court of Session, [2012] CSIH 87 [2013] UKSC 74 – read judgment

 

The Supreme Court has clarified the principles to be applied when considering the welfare of children in deportation cases. The following summary is based on the Supreme Court’s Press Summary.

The appellant (Mr Z) and his wife (Mrs Z) are nationals of the Republic of Congo currently living in Glasgow with their three children, now aged 9, 5 and 2. Mr Z entered the UK illegally in May 2001 using a French passport that did not belong to him. He married Mrs Z in November 2003 after she had entered the previous year using a forged French passport and both their asylum claims had been refused. Their appeals were unsuccessful . In October 2005 Mrs Z and the couple’s daughter (A) were detained and removed to Congo. For the following ten months, Mr Z was treated as an absconder having failed to report to the authorities.

In March 2006, Mrs Z and A returned to the UK using fake passports and a residence permit that did not belong to them. Mrs Z claimed asylum, naming Mr Z and A as dependents. Her claim was refused and her appeal finally dismissed on 3 July 2007. The couple did not have permission to work but received state benefits because Mr Z claimed he was destitute. However, between September 2008 and April 2010, credits of over £27,000 from unidentified sources were paid into bank accounts of Mrs Zoumbas and of the older two children.

In June 2010, Mr Z submitted further representations asserting that there had been a change in circumstances because the family had established a family life which should be respected under article 8 of the European Convention on Human Rights. In a letter dated 4 October 2011, the Secretary of State intimated her decision that his representations did not qualify him for asylum or humanitarian protection and that he did not merit a grant of limited leave to enter or remain. She also held that his submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules because they did not create a reasonable prospect of success before an immigration judge. Mr Z challenged that decision for the manner in which the Secretary of State dealt with the best interests of his children. His petition for judicial review was refused, and his appeal to the Inner House dismissed.

Before the Supreme Court, Mr Z made his challenge in three parts.

First, he argued that the Secretary of State had failed to have regard to the best interests of his children as a primary consideration in the proportionality assessment under article 8, and that this was also a breach of section 55 of the Borders, Citizenship and Immigration Act 2009. He submitted, relying on what Lord Kerr said in the Supreme Court’s judgment in ZH (Tanzania), that what is determined to be in the child’s best interests should ordinarily dictate the outcome of cases.

Second, he criticised the Secretary of State’s findings in relation to the best interests of the children, including by arguing that it was irrational to conclude that these would be served by the children’s removal to Congo. The findings had assumed that he and his wife would be removed.

Third, he contended that the Secretary of State was wrong to conclude that his further representations did not have a realistic prospect of success before an immigration judge.

The Court unanimously dismissed the appeal. 

Reasoning behind the judgment

References in square brackets are to paragraphs in the judgment 

Delivering the Court’s judgment, Lord Hodge set out seven principles relevant in the case [10], which counsel for Mr Z had enumerated. He noted that Lord Kerr’s formulation spoke of dictating the outcome of cases “such as” ZH, and in that case the Court was dealing with British citizens, unlike the children in this case. The benefits of British citizenship were an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country. Moreover, Lord Kerr had explained that what he was seeking to say was that no factor should be given greater weight than the interests of a child [12]. Further, the decision-maker is required to assess the proportionality of the interference in the particular circumstances in which the decision is made – an evaluative exercise that excludes any hard-edged or bright line general rule [13]

In this case, the Secretary of State accepted that Mr Z had established a private life and a family life in the UK. She then concluded that the interference would be in accordance with the law and in pursuit of the legitimate aim of maintaining effective immigration control, having referred to the family’s unlawful residence, the fact that family life had been established in the full knowledge that they had no right to reside in the UK and could be removed at any time, and the couple’s “appalling immigration history” and the unidentified bank credits. Family life would be preserved as the whole family would be removed with Mr Z.

The first part of Mr Zoumbas’ challenge rested on a mistaken construction of the decision letter. It had been accepted that the status of the well-being the children as a primary consideration did not mean that it had in every case to be considered first with other possible countervailing issues considered thereafter. It was important to read the letter as a whole and to analyse the substance of the decision [19].

There was nothing wrong with the Secretary of State’s use of a template letter in which her conclusion is followed by her reasoning – what was important was that the best interests of the children were at the forefront of the decision-maker’s mind. That the conclusions on best interests were set out briefly does not mean they were not considered carefully, and the Secretary of State did not need to record and deal with every piece of evidence in her letter [22-23]. The Court suggested that challenges such as the present would be less likely if her advisers were to express the test in the way it was expressed in ZH (Tanzania), and to expand the explanation of the separate consideration given to the interests of the children [28].

As for the second part of the challenge, it would be possible to conclude, other things being equal, that it would be in the children’s best interests to stay in the UK. But other things are not equal, including that the children were not British citizens [24]. The Court rejected the criticism that the assessment of best interests was flawed because it assumed that the parents would be removed. It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance [25].

The third part of the challenge could not succeed, the first two parts having failed [26].

Sign up to free human rights updates by email, Facebook, Twitter or RSS

 

3 comments


  1. CGB "Diplock" says:

    The SSHD approach is unrealistic and lack compassionate consideration of the real circumstances in reality as to what the “best interest” really means and it’s then boling down it seems to the strength of the emotional arguments as perceived by the judges. Firstly there ought to be a definition far wider and more detailed as for “best interest’ where deportation cases are concerned as the current ideology appears to be based on guidelines and terminologies as used by social services throughout the UK.\

    Secondly, proper considerations are not being given to the cultural and racial aspects of children’s relationships with the parent the SSHD proposes is deported. Judges are sticking too rigidly to the ambit of the ECHR Art 8 and not enough is done to cover the wider areas of importance as they relates to a deportation case.

    While the current deficits in the approaches continues with the SSHD and the courts then there will undoubtedly continue to be discrimination of children whose best interests are not given the proper assessment and consideration as they ought to by the government side and the court.

  2. John Jones says:

    It would appear that asylum law, in it’s present state, allows foreigners to act illegally without repercussion and to live in the host country for the better part of a decade while exacting both a stipend and free legal funding, as well as all other social services. I should think that something needs adjustment if this large expense simply results in yet another deportation years and years down the track, ‘maybe’. Will they be back again with more false identity, again with no repercussions?

  3. rose white says:

    How do these people get benefits when they have such inflated bank accounts when a white English pensioner like myself has to take a means test and produce banks accounts before we get paid a penny benefits.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: