2011 04 Migrants

Sunday 1 May 2011

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Case Law

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4: Significant decision of the Supreme Court considering the best interest of children who are affected by the decision to remove or deport one or both of their parents from the UK. Although a case decided in the specific context of deportation and immigration law, the finding of the Supreme Court is important particularly in considering what "best interest of the child" means.

(i) At paras 29, 34-37, the Supreme Court held that the 'best interests of the child' broadly means the well-being of the child. A consideration of where these best interests lie 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. In this particular context, as a matter of law, a British national cannot be removed or deported.

(ii) Although 'nationality' does not trump deportation, it is of particular importance in assessing 'best interests' of any child. On the facts of this appeal, the children were not citizens by 'accident' - born in the UK - but by descent. They had lived in the UK all their lives; were educated in the UK; had social links with the community and a good relationship with their father in the UK (mother is a Tanzanian national). It is therefore not enough to say that the child may readily adapt to life in another country - see paragraphs 30-31.

(iii) the intrinsic value of citizenship cannot be played down. As citizens the children have rights which they would not be able to exercise if they moved 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 lose this when they come back as adults: see paragraph 32.

(iv) Section 55 of the Borders Citizenship and Immigration Act 2009 does not only apply to how children are looked after whilst decisions about immigration, asylum, and removal are considered. The duty apples to the decisions themselves. This means any decision taken without having regard to the need to safeguard and promote the welfare of any children involved will not be 'in accordance with the law.' - see paragraph 24.

(iv) In making an Article 8 assessment of proportionality, the best interests of the child must be a primary consideration. This means they must be considered first. They may be outweighed by countervailing considerations but the order of consideration must place the best interests of the child first. In the present claim, the children were not to be blamed for the mother's immigration history. The inevitable result of removing the mother who was the primary carer would mean the children would have to leave with her. That would not be in their best interests.

(v) Lord Kerr stated that the fact that a child is a British citizen also has an independent value, freestanding of the debate over best interests, and this must weigh in the balance in any decision that may affect where a child may live: see paragraphs 46-47.

Click here for the judgment.

Note:

This is a significant case looking at the primacy of the consideration of best interests of the child outside the family law context. The Supreme Court specifically based its analysis on Article 3(1) of the UN Convention on the Rights of the Child and the importance of a rights based approach to consideration children's welfare in decisions that will have a significant impact on them - in the present appeal, the removal of their mother, their primary carer.

Further and importantly, this case is a good illustration of the importance of allowing the child's voice to be heard. The significance is not just in the Supreme Court's sounding endorsement of the important right under Article 12 of the UNCRC (child's right to be heard) but in that the children were separately represented in the appeal and intervened to make their voice heard.

(Click here for the UN Convention on the Rights of the Child)

Lady Hale's speech urged both decision makers and legal representatives to be alive to the child's views and cautioned against assumptions being made that the child's views would necessarily be the same as either / both parents.

R (FZ) v LB of Croydon [2011] EWCA Civ 59 (Sir Anthony May (Presiden of the QB); Smith LJ and Aikens LJ): Guideline case from the Court of Appeal on the correct approach to be taken by local authorities and the court to resolve a dispute over age of an unaccompanied asylum seeking child. The correct question the Court must ask at the permission stage is whether the material before the Court, taken at its highest, support the putative child's claimed age. If so, permission should be granted subject to normal considerations such as delay, whether the claim is academic, etc. Judgment also deals with issue of transfer from the Administrative Court to the Upper Tribunal (Immigration and Asylum Chamber) following the grant of jurisdiction to the Upper Tribunal via the First-Tier Tribunal and Upper Tribunal (Chambers) Order 2010 (SI/2010/2655)

Jan Luba Q.C. and Shu Shin Luh of Garden Court Chambers represented the Claimant child. Click here for the judgment.

See further information about the case in the Practice Notes section of the website.

R (YZ, MT and YM) v Secretary of State for the Home Department [2011] EWHC 205 (Admin) (Beatson J): Another interesting but ultimately unsuccessful challenge to the Dublin II Regulations (EC Regulation 343/2003) in terms of what must be satisfied prior to a decision being taken to request a receiving state (Italy in this case) to take back the claimant asylum-seeker from the UK. There were three grounds of challenge, the first two related to the decision-making powers of the SSHD and the third, and most interesting one related to a factual dispute as to whether the claimants had claimed asylum in another Member State. The argument run in the case by the claimants was that whether a person had claimed asylum in another Member State was a precedent fact which must be determined and proven before a decision can be made to remove the claimant under Dublin II. This was rejected by the Judge, having considered the purpose of the Dublin system, which was to provide a common system by which (via Eurodac) member states could rapidly establish responsibility under Dublin II. The system provide that a request made by one member state to another would then be checked via Eurodac for accuracy. In the present claims, Italy accepted responsibility for each of the claimants' claim after a check that verified their information in the Italian system. On that basis the Secretary of State for the Home Department was entitled to conclude that the data was not incorrect. The Secretary of State for the Home Department did not need to go beyond that to verify the fact of an asylum claim. Click here for the judgment.

Other matters:
Funding for Refugee Council will be slashed by over 60% come April 2011. Yet another victim of the 'austerity' cuts of the Government. Click here for the report.

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