The 'Best Interest' of a Child in Immigration Decisions

The best interests of children sit at the heart of immigration decisions in the UK.

Whenever a case involves a child, whether the child is themselves subject to immigration control or is the British‑based child of a parent facing removal, decision‑makers must consider how removal would affect the child’s welfare and family life.

This assessment is rooted in three key frameworks: the UN Convention on the Rights of the Child (UNCRC), section 55 of the Borders, Citizenship and Immigration Act 2009, and Article 8 of the European Convention on Human Rights (ECHR).

Although children’s immigration rights form only part of the wider system, they carry exceptional importance. The law in this area has grown increasingly complex, and courts have repeatedly emphasised that children’s interests must be treated with serious, structured attention.

The UNCRC: A Primary Consideration

The UNCRC recognises the fundamental importance of children’s welfare. Article 3(1) states that:

“In all actions concerning children, the best interests of the child shall be a primary consideration.”

The UK remains a party to the UNCRC.

While the Convention is not directly enforceable in domestic courts, its principles strongly influence UK case law. In 2008, the UK lifted its previous immigration‑related reservation to the UNCRC; it did not withdraw from the Convention.

The lifting of the reservation clarified that UNCRC obligations apply to all children within UK jurisdiction, though they do not automatically govern entry decisions or create freestanding rights.

Courts nevertheless treat Article 3(1) as an important interpretive tool when assessing children’s interests under Article 8 ECHR and section 55.

Section 55: A Statutory Duty to Safeguard Children’s Welfare

Section 55 of the Borders, Citizenship and Immigration Act 2009 came into force on 2 November 2009. It created a legally binding duty requiring the Secretary of State to ensure that immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK.

This duty applies to:

• Home Office decision‑makers
• Immigration officers
• Any person providing services under Home Office arrangements

Lady Hale described section 55 as embodying “the spirit, if not the precise language” of the UNCRC. A decision that fails to consider children’s welfare is not “in accordance with the law” for Article 8(2) ECHR.

Section 55 formally applies only to children within the UK, but its principles, especially the requirement to treat children’s interests as a primary consideration, influence entry‑clearance decisions through Article 8 ECHR and UNCRC guidance.

Article 8 ECHR: Family Life and Proportionality

Article 8 protects the right to respect for private and family life. Removal or deportation may breach Article 8(1) if it disrupts a child’s family life or undermines their welfare.

Tribunals have repeatedly emphasised that children’s interests must be a primary consideration. In LD (Zimbabwe), the Upper Tribunal stated that “there can be little reason to doubt that the interests of the child should be a primary consideration.”

However, Article 8 involves a balancing exercise. The question is whether the child’s best interests are outweighed by other legitimate factors, such as immigration control or criminality. Earlier case law sometimes treated children’s interests as important but not decisive, leaving room for competing considerations to override them.

The European Court of Human Rights in Uner v Netherlands set out criteria for assessing proportionality, including:

• the nature of the family life
• the seriousness of the immigration breach or offending
• the age of the child
• the strength of the child’s ties to the UK
• the likely impact of removal

These factors help determine whether removal would effectively sever meaningful family relationships.

ZH (Tanzania): A Landmark Shift

The Supreme Court’s judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 transformed the legal landscape. Lady Hale held that children’s best interests must be:

• identified clearly,
• considered first, and
• given substantial weight before other factors are introduced.

The judgment confirmed that children’s views must be heard and properly taken into account. It also stressed the importance of British citizenship:

“Although nationality is not a ‘trump card’, it is of particular importance in assessing the best interests of any child.”

Citizenship reflects a child’s identity, rights, and long‑term connection to the UK. In ZH (Tanzania), the mother’s poor immigration history could not be held against her British children. Removing their primary carer would force them to leave the UK, which was disproportionate.

The case established that a child’s removal cannot be treated as a mere consequence of a parent’s deportation. It must be analysed as a separate issue, with its own best‑interests assessment.

Children’s Interests Beyond Citizenship

While ZH (Tanzania) highlighted the significance of British citizenship, the principle applies to all children in the UK, regardless of nationality. Where a child has dual nationality shared with a parent, arguments against removal may carry less weight, but the child’s welfare still requires careful, individualised analysis.

Home Office policy often states that removal with parents does not interfere with “family life” because family life can continue abroad. However, post‑ZH (Tanzania), courts require a deeper assessment of:

• education
• stability
• emotional and psychological impact
• the child’s ties to the UK
• the feasibility and reasonableness of relocation

The child’s best interests must be addressed first, in a distinct inquiry, before weighing competing factors.

Section 55 and Entry Cases

Section 55 applies only to children within UK jurisdiction, not to children abroad seeking entry. However, UNCRC principles and Article 8 ECHR still influence entry‑clearance decisions.

Home Office guidance acknowledges this, stating that decision‑makers should consider:

• the likely effect on a child’s education,
• the child’s care and maintenance arrangements, and
• the overall impact of relocation.

Although the duty is weaker in entry cases, children’s welfare remains relevant wherever Article 8 is engaged.

Conclusion

The combined effect of section 55, Article 8 ECHR and the UNCRC, reinforced by the Supreme Court’s judgment in ZH (Tanzania), has reshaped UK immigration law. Children’s best interests must now be placed at the centre of decision‑making, treated as a primary consideration, and analysed separately from the parent’s immigration history.

A child’s removal from the UK can no longer be viewed as an automatic consequence of a parent’s deportation.

Instead, it requires a careful, structured assessment of the child’s welfare, identity, stability, and long‑term interests. This shift ensures that children’s rights are finally and properly at the forefront of immigration decisions.