Human rights - Best interests - Children - Deportation

ZH (Tanzania) V Secretary of State for the Home Department: SC (Lords Justices Hope, Brown, Mance, Kerr, Lady Justice Hale): 1 February 2011

The appellant mother (M) appealed against a Court of Appeal decision upholding a finding by an Asylum and Immigration Tribunal that her two children (C), who were British citizens, could reasonably be expected to follow her when she was removed to Tanzania by the respondent secretary of state.

M, a Tanzanian national, had arrived in the UK illegally in 1995. She had made three unsuccessful claims for asylum, two of which were made using a false identity. C were aged 12 and 9, and their father (F) was a British citizen. C had lived in Britain with M all their lives. M and F had separated in 2005 but C saw F on a regular basis.

F was diagnosed as HIV positive in 2007 and M made further representations to the secretary of state which were refused.

M’s appeal was dismissed. On a reconsideration the AIT initially held that the tribunal had erred in failing to take C’s rights into account but subsequently found that M’s removal would not represent such an interference with family life, including C’s, to be disproportionate with her rights under article 8 of the European Convention on Human Rights 1950.

The Court of Appeal rejected the argument that C’s British citizenship was a ‘trump card’ preventing M’s removal. M contended that insufficient weight was given to the welfare of all children affected by decisions to remove their parents and particularly those children who were British citizens.

M argued that that was incompatible with their article 8 rights in the light of the UK’s obligations under the UN Convention on the Rights of the Child (UNCRC).

Held: (1) The ‘best interests of the child’ broadly meant the well-being of the child. That involved asking whether it was reasonable to expect the child to live in another country.

Relevant factors included the level of the child’s integration and the length of absence from the other country; where and with whom the child was to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which would be severed if the child had to move away.

Uner v Netherlands (46410/99) [2006] 3 FCR 340 ECHR (Grand Chamber) and Da Silva v Netherlands (50435/99) [2006] 1 FCR 229 ECHR applied, EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159 and Wan v Minister for Immigration and Agricultural Affairs [2001] FCA 568 considered.

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

The UNCRC recognised the rights of every child to be registered and acquire a nationality and to preserve their identity. In the instant case, C were British not just through the ‘accident’ of being born in Britain but by descent from a British parent.

They had an unqualified right of abode, had lived in Britain all their lives and were being educated in Britain; they had other social links with the community and had a good relationship with F.

It was not enough to say that a young child might readily adapt to life in another country, particularly children who had lived in Britain all their lives and were being expected to move to a country they did not know and where they would be separated from a parent.

The intrinsic importance of citizenship should not be played down. The children had rights which they would not be able to exercise if they moved to another country.

They would lose the advantages of growing up and being educated in their own country, their own culture and language. When making an assessment of proportionality under article 8, the best interests of the child had to be a primary consideration. That meant they had to be considered first.

However, they could be outweighed by the cumulative effect of other considerations. In the instant case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with M’s appalling immigration history and the precariousness of her position when family life was created.

However, C could not be blamed for that and the inevitable result of removing M, their carer, would be that they would have to leave with her. In those circumstances, it would be disproportionate to remove M, Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, [2003] 1 WLR 2979 considered (see paragraphs 29-33 of judgment).

(2) An important element of considering the best interests of the child was discovering the child’s own views.

The immigration authorities had to be prepared to consider hearing directly from a child who wished to express a view and was old enough to do so. While their interests might be the same as their parents’, that should not be taken for granted (paragraphs 34-37).

Appeal allowed.

Manjit Gill QC, Benjamin Hawkin (instructed by Raffles Haig) for the appellant: Monica Carss-Frisk QC, Susan Chan (instructed by Treasury Solicitor) for the respondent; Joanna Dodson QC, Edward Nicholson (instructed by Raffles Haig) for the interveners.