The ‘Best Interest’ of a Child in Immigration Decisions

The concept of the ‘best interest’ of a child lies at the core of immigration decisions which involve children. The best interest of a child is usually considered in the course of determining whether it would be a breach of the child’s rights under Article 8 of the European Convention of Human Rights (ECHR) to remove them from the family. The UK’s immigration law on children is only a small part of the picture, but is one which bears a huge amount of importance. It is an area of increasing complexity that warrants specialised attention.

The exceptional importance of the welfare of the child is acknowledged in the UN Convention on the Rights of the Child (UNCRC). However, in November 2008, the UK withdrew its registration to the UNCRC. The obligations under the Convention extend to children within the jurisdiction of the contracting state – in other words, within the territory of the UK. As a result, there is no obligation to ensure that rules under the Convention apply to the entry of children into the state. Moreover, the UNCRC does not give rise to directly enforceable rights.

Article 3(1) of the UNCRC states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Following the withdrawal of the Convention, section 55 of the Borders, Citizenship and Immigration Act (which came into force on 2 November 2009) was introduced, this allowed for the beginning of a new climate in immigration law relating to children’s rights. This section stipulates that the Secretary of State must make arrangements for ensuring that:

1. Certain functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK, and
2. Any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned are provided having regard to that need.

These functions include any function of the Secretary of State in relation to immigration, asylum or nationality and any function conferred by, or by virtue of, the Immigration Acts on to an immigration officer.

Lady Hale considered ‘the spirit, if not the precise language’ of these obligations, and stated that a decision not made within these considerations would not be in accordance with the law for the purposes of Article 8(2) ECHR.[1] The section 55 provisions may also affect decisions that are made about those who are caring for a child – this will be explored later in ZH (Tanzania) v Secretary of State for the Home Deparment [2011] UKSC 4.

This legally binding legislation paved the way for the courts to focus on what should be taken into account, when considering cases that involve children, who are either themselves subject to immigration control or are the settled children of a parent who is threatened with removal from the UK.

The disruption to a child’s life due to the deportation of their dependent may lead to a possible violation of Article 8(1). As stated in LD Zimbabwe (2010) UKUT 278 (IAC) at paragraph 28: ‘there can be little reason to doubt that the interests of the child should be [a] primary consideration.’ On many occasions, children are trapped in between such situations and the possible effect this may have on them is a problem that the courts take very seriously.[/two_third]

Where a child’s family life was an issue their best interest was of primary consideration. The question which was raised was whether these rights have been ‘outweighed by the strength of other considerations.'[2] However, this did not mean that the examination of ‘best interest’ had to be at the beginning of the process. It just simply confirmed that this principle should not be recognised as having reduced importance. However, it still left room for other contradicting factors to outweigh the importance of a child’s interest and this proved to be problematic.

In Uner v Netherlands [2006] 3 FCR 340 it was stated, at paragraph 58, that the following criteria must be examined:

the requiring consideration of the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled.

This criteria illustrated that it is necessary to demonstrate that there is continuing significant contact and that this would be effectively broken if either of the parents or child were to be deported.[3] Fortunately, more emphasis is now added to the assessment of a child’s interest.

The judgment in ZH (Tanzania)

In 2011, the Supreme Court’s judgment in ZH (Tanzania) v SSHD[2011] UKSC 4 set out the weight to be given to the best interest of the child in collaboration with Article 3(1) of the UNCRC. It is crucial to ensure that the child’s views are heard and properly taken into account.[4] The duty applies not only to how children are looked after while decisions about immigration and asylum are being made, but also about the decisions themselves.

The ZH (Tanzania) judgment changed the legal landscape significantly. A child’s best interest should now be distinguished and understood before other conflicting factors are introduced and then given very considerable weight when set against other matters of legitimate public interest. This produces extensive consequences for the way in which decision making processes should be developed and how decisions should be made. Fundamentally, the ZH (Tanzania) judgment now places the child’s interests, their effective participation and proper consideration of their views at the very centre of the decision making process.

In addition, this judgment is more notable for the importance it attaches to the British citizenship of UK-based children. As Lady Hale observed: ‘although nationality is not a “trump card” it is of particular importance in assessing the best interests of any child’ (paragraph 30). She went on to state that:

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.

In this case, the countervailing considerations were the claimant’s appalling immigration history and the precariousness of her position when family life was created. The children were not, however, to be blamed for that and the result of removing their primary guardian would be that they had to leave with her, which was a disproportionate conclusion.

The new immigration rules in relation to the application of Article 8 seek to introduce the examination of ties to the country of return and the interests of children in staying with their parents if they are to be deported to their country of origin. [5] C-413/99 Baumbast and R [2002] ECR I-7091 considered whether a Colombian woman who had divorced her German husband had the right to continue living in the UK so her child could attend school. Allowing the application, the court specifically referred to the fundamental right to respect for family life and the child’s interest was one of the dominating issues.

Whilst the judgment in ZH (Tanzania) focused on the weight given to nationality, the importance of a child’s interest applies to all children in the UK irrespective of their nationality. Where a child has dual nationality, particularly one that is shared with a parent, the arguments against removal from the UK will have less of an impact. The Home Office does not consider the removal of children with their parents to be an interference with their ‘family life’, provided that it is reasonable to expect the child to accompany the departing parent(s), as there is no reason why ‘family life’ cannot continue outside the UK. Nonetheless, the Secretary of State stated that regard should also be had to the likely effect on a child’s education, and the effect on plans for the child’s care and maintenance, as part of the overall Article 8 assessment. However, the child’s best interests should be addressed first in a separate inquiry.[6]

Section 55 is held to apply only to children within the UK jurisdiction. Hence, it cannot apply to entry cases where immigration concerns carry much greater weight. However, Lady Hale’s observation in ZH (Tanzania) of a child’s interest being ‘primary consideration’ should theoretically be applied when ECHR issues arise in entry cases. The section 55 guidance, which must be taken into consideration according to section 55(3) when deliberating child entry cases states at paragraph 2.34 that:

UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention.

Therefore, there does not seem to be an absolute obligation on the UKBA to consider the welfare of children, which may portray a lack of interest in regards to a child’s welfare abroad.

Conclusion

The effect of section 55 and the decisions of the court in ZH (Tanzania) have allowed for a significant shift in immigration law which firmly puts children’s rights and the application of the best interest principle finally and properly at the top of the agenda. The decision in ZH(Tanzania) concludes that a child’s removal from the UK with his or her parent(s) can no longer be viewed as a secondary result of their parent’s removal. Instead, it must be considered as a discrete and separate issue with an individual analysis of the merits of the case of the child’s best interests.

[1] ZH (Tanzania) v SSHD [2011] UKSC 4 (paragraph 23)

[2] B Gingell, S Foste ‘Family rights and extradition: a new approach?’ (2012) 17(2) Coventry Law Journal 93-97

[3]Berrehab v Netherlands 3/1987/126/177; 10730/84

[4] S Bolton, ‘Promoting the best interests of the child in UK asylum law and procedures’ (2012) 26(3) Journal of Immigration Asylum and Nationality Law 232-254

[5] S Symonds, ‘Family migration’ (2012) 26(3) Journal of Immigration Asylum and Nationality Law 220-222

[6] Rosenblatt.J and Lewis.I (1997) Children and Immigration (Cavendish Publishing Ltd: London)