Migrant Children's Rights: A Year in Review

Wednesday 28 December 2011

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(This note is reproduced from a paper presented at a recent judicial review conference, the topic being an update on migrant children's rights in 2011.)

1. The past year marked important legal developments in how the courts approach the rights of migrant children with mixed results. One recurring concept in the case law has been the ‘best interests of the child.’ This concept surfaces not only in the immigration tribunals, but also in the Administrative Court, the Appellate Court (both in the context of immigration and community care cases) and in the Supreme Court. What it actually means and how it has been analysed by the courts has varied across jurisdictions (tribunals, administrative court, and appellate courts).

2. This note will look at the way the courts have approached the assessment of the best interests of migrant children in the context of age disputes, immigration detention, removal, dispersal and social care matters.

Best interests of the child - General
3. The most often cited source for the concept, ‘Best interests of the child’ is Article 3, UN Convention on the Rights of the Child which states as follows:

Article 3
1. 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.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

4. Article 4 of the UNCRC requires that state signatories pass legislation and measures domestically to ensure that the provisions and principles of the treaty are fully reflected and given legal effect in relevant domestic legislation.

5. Around the same time that the UNCRC was ratified by the UK government in 1991, the UK Parliament introduced the Children Act 1989, incorporating into section 1 of the Children Act 1989 the UNCRC principle that the ‘best interests of the child’ would be a paramount consideration when courts are making orders affecting children.

6. All of this applied but for to migrant children because of a general reservation the UK government entered relating to immigration and citizenship which allowed it to apply legislation relating to immigration without having to have regard to the principles and provisions of the UNCRC – legislation that affected children seeking asylum, trafficked children, and all other children subject to immigration control.

7. This of course all changed in 2007 when the UK government lifted its reservation to the UNCRC and introduced s21, UK Borders Act 2007, and subsequently after much lobbying by children’s charities, introduced s55, Borders Citizenship and Immigration Act 2009 (‘BCIA 2009’).

8. The introduction of s55, BCIA 2009 finally placed the duty imposed on the UK Border Agency to make ‘best interests of the child’ a paramount consideration on par with other public authorities who were already bound to do so pursuant to ss10 & 11, Children Act 2004. The base starting point must be - children first, migrant second.

What does this mean?
9. What ‘best interests of the child’ means is undefined in either the UN Convention on the Rights of the Child or in our domestic legislation. The UNHCR guidelines loosely define this as the well-being of the child, which naturally takes on a different meaning in different cultural, political and legal contexts.

10. In ZH (Tanzania) v SSHD [2011] UKSC 8, Lady Hale made clear that when it is said that the ‘best interests of the child’ must be a primary consideration, it means that they must be considered first: see §33. The decision-maker thus must make a decision on what is in the overall best interests of the child and only then to assess whether those interests are outweighed by countervailing factors such as those concerned with the rights and freedoms of others, the effective maintenance of immigration control, prevention of crime, etc.: see Lady Hale at §33; Lord Hope at §44; Lord Kerr at §46.

11. A similar approach was taken by Blake J in the case of MXL v SSHD and Ors [2010] EWHC 2397 (Admin) at §§82-85.

12. Both MXL and ZH are pre-s55 BCIA 2009 cases, and the analysis of ‘best interests of the child’ being a primary consideration was one based on Article 8, ECHR. However as Lady Hale stated at §§23-28, the same approach would be expected and required when considering the s55, BCIA 2009 duty.

13. In DS (Afghanistan) v SSHD [2011] EWCA Civ 305, the Court of Appeal allowed the appeal and remitted the case back to the Tribunal for reconsideration in circumstances where the Tribunal and the Secretary of State for the Home Department failed to take any steps at all to consider the possibility of returning an Afghan child to his family in Afghanistan. It was held by the Court of Appeal that s55, BCIA 2009 was a positive duty enforceable by an individual child and requires the SSHD to take positive steps to promote and safeguard the welfare of a child who is in the UK. Failure to assist in tracing family members or to enquire about reception arrangements on return is a breach therefore of the UKBA’s duty under s55, BCIA 2009: see §§45-46. What should have be done will vary from case to case. Inactivity, combined with the failure to bring to the attention of the Tribunal the relevant duty under s55, BCIA 2009, was not a permissible way forward. The Court of Appeal further rejected the SSHD’s argument that the appellant allegedly failed to cooperate with the Red Cross. The lack of cooperation from the child did not relieve the SSHD of her duty.

14. In R (Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin), the High Court considered the application of the s55 duty in the context of a refusal of an application for indefinite leave to remain. It was not, like DS or ZH a case which gave rise to detention or the immediate prospect of being deported, although the possible refusal of indefinite leave to remain could give rise to removal issues. As the Court rightly stated in its judgment, whatever the immigration decision under challenge, it cannot reduce / minimise the duty under s55, BCIA 2009 to take account of the best interests of any child directly affected by that application and its possible refusal.

15. In Tinizaray, the relevant decision would have a direct effect on a child who is aged 9, born in the UK, lived in the UK her entire life, but who was, with her mother and grandmother, an Ecuadorian citizen, who has had no contact with and no prospect of having contact with her father, has had no contact with Ecuador or any understanding of an Ecuadorian way of life. The Court held that in considering the impact of the immigration decision on the child, s55 would require the following approach:

(i) When considering whether it is proportionate to grant or refuse a parent or grandparent of a child living with that person indefinite leave to remain in the United Kingdom or to remove that person from the United Kingdom, the decision-maker must balance the reason for expulsion or refusal against the impact upon the child, particularly when the child can reasonably be expected to follow the removed parent or grandparent.
(ii) The child's best interests must be taken account of in undertaking this balancing exercise. These best interests that are referred to are the child's upbringing and well-being in general and whether it is reasonable to expect the child to live in another country.
(iii) These best interests must be a primary consideration which should be considered first. These interests are, however, not paramount. However, any other consideration should not be treated as inherently more significant but the strength of these other considerations may, when taken together, outweigh the child's best interests.
(iv) The nationality of the child must be taken account of. That nationality is of particular but not decisive importance, particularly if the child is British since deportation would deprive that child of her country of origin and the protection and support that she has acquired socially, culturally and medically from growing up in a British lifestyle and would also lead to a social and linguistic disruption and a loss of educational opportunities. Equally, the fact that a child is non-British may ensure that deportation is of less significance for her but her non-British nationality is not of decisive importance.
(v) The views of a child who is capable of forming her own views in all matters affecting her must be heard and due weight must be given to them in accordance with her age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained.

16. Importantly, the Court in Tinizaray held that the s55 BCIA 2009 duty and the assessment of ‘best interests’ cannot be limited to information which is supplied by the child / her family members, particularly if it is clear that that information is either incomplete or potentially slanted. The s55, BCIA 2009 duty requires further information to be sought by the decision maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires, and seeking / soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children’s welfare groups and schools: see §24 of the judgment. This is akin to the well-established public law Tameside duty to inquire (i.e. did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?).

17. What the case law thus far has illustrated is an important point, ‘best interests of the child’ is not a catch-all phrase, nor is it a trump card to all other factors. The case law would also illustrate that the balancing exercise as to best interests of the child is one that is very much evidentially based.

Detention cases
18. The UKBA’s Enforcement Instructions and Guidance (‘EIG’) Chapter 55 sets out the policy on detention of children, which states that both lone children and families with children should not be detained save for in the most exceptional of circumstances. This position of the UKBA is reinforced by the s55, BCIA 2009 duty and the associated statutory guidance, Every Child Matters – Change for Children, see in particular §2.19. In respect of lone children, detention should be used only in the most exceptional circumstances; for children and families, it must be the last resort.

19. What is deemed to be ‘most exceptional’ is not defined in the policy guidance but must clearly be read in conjunction with the general presumption in favour of liberty.

20. In Suppiah v SSHD [2011] EWHC 2 (Admin), each of the two claimant mothers was a failed asylum seeker. Each applied for judicial review of the SSHD’s decision to detain them pending removal. The first claimant mother and her children (the second and third claimants) had exhausted their appeal rights against the refusal of their asylum claims. They were served with directions for their removal with 72 hours’ notice and were immediately removed from their home and taken into detention in advance of removal. Representations were made on their behalf as to why they should not be moved. Judicial review proceedings were lodged. In the face of that, the UKBA decided not to remove them as planned, but they remained in detention for another 2 weeks. The fourth claimant mother, and her son the fifth claimant, had also exhausted their rights of appeal against their refused asylum claims. She was served with directions for their removal 72 hours later; they were also immediately removed from their home and detained. An injunction against their removal was granted in advance of the removal; also she was not fit to travel, so they were not removed as planned, but they remained detained for another 10 days. The claimants asserted that their detention was unlawful and breached their rights under the European Convention on Human Rights 1950 art.3, art.5 and art.8.

21. In holding that the detention of the claimants was unlawful, Wyn Williams J held that the proper interpretation of the UKBA policy was that the detention of families with children should be authorised only in exceptional circumstances. That meant that the suggestion in the policy that families with children could be detained on the same basis as any other person liable to removal should be regarded, quite properly, as redundant: see §§ 25, 209-222, 224 of judgment). On the balance of probabilities, no meaningful or proper offer of assisted voluntary return was ever made to either claimant prior to their detention. There was no evidence that the relevant decision-makers in the Agency had considered their duty under s55, BCIA 2009 to safeguard and promote the welfare of the children, or had treated it as a primary consideration; or if they did consider it what their reasoning process was in relation to it: R (on the application of TS) v Secretary of State for the Home Department (2010) EWHC 2614 (Admin) applied, i.e. it is not sufficient simply to state that s55, BCIA 2009 has been considered, but necessary for the decision-maker to demonstrate how it considered it and what factors it took into account.

22. In Tinizaray, the Court held that the failure to have regard to the duty under s.55 made the detention of all the claimants unlawful. Their detention was neither inevitable nor probable if the UKBA had complied with its statutory duty. Moreover, the claimants’ detention was unlawful for reasons which were wider in scope than the failure under s.55.

23. In relation to the first claimant, the risk that she would abscond was very low; no account was taken of the fact that she had never attempted to evade the authorities and had complied with the reporting requirements placed upon her. The detention of children should be a last resort, yet it was very hard to see what justification there could have been for detaining the first claimant and her children. It seemed that their detention was imposed by default; if all appropriate factors had been taken into account, it would not have been authorised. Even if that was wrong, their detention became unlawful once the original removal was cancelled. At that point removal was going to take another three to four weeks, and the third claimant had become ill. The Family Welfare Forms for the claimants had not been correctly completed; that represented a significant breach of policy. The policy required that detention be maintained for the shortest possible period and the s.55 duty had to be considered at each detention review. Those aspects of the policy were ignored when detention was authorised for the first claimant after the first removal decision was cancelled.

24. In relation to the fourth claimant, there was some basis for concern that she would abscond, but that was not such a potent factor so as to justify detaining her and her child. Even if it was wrong that their detention was unlawful from its inception, by the time the injunction was obtained, when there was a detention review, it was unlawful. Their detention was in direct conflict with the SSHD’s published policy.

25. The claimants’ Art.8 rights were breached by the fact of their unlawful detention, not by virtue of their treatment at the detention centre. Further, their detention was arbitrary within Art.5 for the same reasons that it was unlawful. The minimum level of severity necessary for the claimants' art.3 rights to be breached was not met: see §§37, 40, 52, 99, 161-164, 166-169, 171, 175, 177, 186-188, 195-196, 200-202, 206, 208.

26. Contrast this with the approach taken by Mitting J in AN and FA v SSHD [2011] EWHC, extempore judgment 27/7/2011. The judicial review claim there related to two claimants (with many more claimant children’s claim filed as evidence) who were both unaccompanied minors from Afghanistan who arrived in the UK in the back of concealed lorries and were arrested at Dover port by Kent police / UKBA officials. Each of the claimants was detained for several hours before being interviewed by UKBA officials in what amounted to an asylum interview. It was only after the interview that UKBA made the necessary referral for welfare services to Kent children’s services and the claimant child was released. The challenge was to the UKBA’s policy of interviewing children at port without appropriate adults in circumstances where the interview raised asylum issues and detaining the children for the purposes of conducting what were loosely referred to as ‘illegal entry interviews’.

27. In respect of the conduct of the interviews, Mitting J accepted that where the interview raised asylum matters, continuing those interview was unlawful and therefore those interviews could not be relied on in the subsequent immigration decision-making process.

28. However, in respect of the contention that the children were unlawfully detained contrary to the UKBA’s policy not to detain unaccompanied children, Mitting J held that the detention was lawful. The judge held that the circumstances surrounding their arrival in the UK were ‘most exceptional’ because they arrived concealed in lorries (rather than by a proper channel), despite the judge accepting that arrival concealed in lorries is a common method of smuggling unaccompanied children in to the UK. However, the judge held that the fact that both claimants had been found in inherently dangerous circumstances provided an illustration of the sort of circumstances that justified very short-term detention, where there were no adults to take responsibility for them, take care of them or prevent them from absconding.

29. The judge went further to state that the power to detain illegal entrants was not displaced by guidance or policy. Although as a matter of routine practice an immigration officer should notify a local authority immediately on taking an unaccompanied minor into detention, the Court accepted that it was the Secretary of State’s practice to obtain information from a minor before informing the relevant local authority. In the instant circumstances, the periods of detention were not of a significant length and the local authority had been notified once the illegal entry interviews had been completed. Any delays were ones caused by allowing the claimants to rest and recover.

30. As it was a pre-s55, BCIA 2009 case, the judge did not make explicit reference to the duty under s55, BCIA 2009. However as is made clear in ZH (Tanzania), the consideration of the best interests of the child does not hinge on the existence of s55, BCIA 2009. It is a process inherently built into the considerations under Article 8(2), it being a primary consideration. Although the judge considered it lawful for the SSHD to detain the child in the first instance at port, the judge did not subsequently deal with the question as to whether the continued detention was unlawful in view of the fact that no referrals were made to welfare services until after the illegal entry interview which the judge had found to be unlawful.

31. The cases of AN and FA are currently the subject of appeal, it is understand, on the detention point.

32. In the context of age-disputed minors, the approach of the courts have been mixed in challenges to the detention of such putative children in circumstances where the dispute over their age is not resolved.

33. See Hossein v SSHD and Kent County Council [2011] EWHC 1924 (Admin) where Collins J held that the age assessments carried out by the Kent social workers was sustainable and there was nothing that the claimant could produce to show that at trial he could persuade a judge of a different conclusion. The analysis was somewhat fact-specific to the case in circumstances where the claimant child did not know his date of birth or his age and his account of his age varied over time. An independent social work report produced on behalf of the claimant child gave yet a different answer as to age. Balanced against the experience of the Kent social workers who observed the claimant over a period of time, it was difficult to see how it could be set aside. On the basis that Collins J found that the young person was over 18, it followed that the claim that he was unlawfully detained by the SSHD fell away. However, Collins J went beyond the facts of this particular claim to consider the scope of the SSHD’s duty / policy to consider whether an age assessment was Merton compliant before placing reliance on it for immigration-related decisions. The claimant placed reliance on observations made by Collins J in R (A) v Croydon LBC [2009] EWHC 939 Admin) at §38 where the judge stated that it was necessary for the SSHD to obtain a full report if it intends to rely on the report to determine age for its own purposes, particularly if there is other evidence which points in the other direction. Collins J stated that only if the full report was available could it be seen whether there were apparent flaws in it and whether it was truly Merton compliant, and sight of the full report would be essential if there was any challenge raised to the decision in question. However in Hossein, Collins J takes a step back from the position he took in A v Croydon to state that the need to obtain the full report is only necessary where the correctness of an age assessment is in dispute. He stated at §22:

It must be borne in mind that objections to the age assessment, if it goes against a particular claimant, are by no means unusual. That underlines the need for a full assessment to be forwarded to the Home Office but it does not follow that in every case where this does not happen there is automatically a breach of the Home Office guidance. If that were the case very many of the age assessments would have been regarded as flawed and if detention had been decided on the basis that the individual was over age it might arguably have been unlawful. That is not the position. I do not think what I said in A can be used to that effect. Accordingly, the Secretary of State in this case was entitled to rely upon the age assessment, indeed on both of them, in deciding what to do with this claim.

34. This analysis of Collins J apparently is based on a belief that the judge had (at §21) that assessments from an authority such as Kent which regularly deals with age assessments could be normally assumed to be Merton compliant. This may have been a dangerous assumption to have made in view of the fact that one of the authorities which regularly deals with age assessments (Croydon) is in fact one of the authorities whose age assessments have routinely been set aside by the Court. Thus query the soundness of the assumption made by Collins J.

35. Contrast this with R (J) v SSHD [2011] EWHC 3073 (Admin) in which Coulson J looked at the Wiltshire assessment and held that it was an example of what not to do in an age assessment. On concluding this, Coulson J then considered whether it could therefore be said that the SSHD acted unlawfully in detaining the claimant child and answered in the affirmative on the following bases:

(i) In deciding to detain the claimant, the SSHD must have considered the Wiltshire assessment. Although the SSHD was entitled to rely on a Merton compliant age assessment, there was an independent obligation on the part of the SSHD to consider that assessment and to reach a conclusion as to whether the assessment was Merton compliant. Although the detail of the assessment was looked at in the case, there was no discussion with the local authority and no reconsideration of the position as to age despite obvious flaws in the age assessment. The SSHD could not have rationally concluded that the Wiltshire assessment was Merton compliant and therefore should not have relied on it: §§30-32.

(ii) That the FTT considered the issue of age and found against the child in terms of age did not itself mean that the issue of age had been resolved as against the SSHD. Although it was not appropriate to criticise the FTT judge given his judgment was not appealed, before the FTT judge there was a competing and fresh assessment of age fro Cardiff which indicated support for the claimant’s claimed age. The FTT judge may not have understood the purpose of this re-assessment. In any event, the FTT judge may not have appreciated the fairly obvious points which Coulson J made as to why the Wiltshire assessment was not Merton compliant as they were not canvassed properly before the FTT. That however did not mean that the SSHD could necessarily be bound by the decision of the FTT in circumstances where the flaws of the Wiltshire assessment were so obvious.

36. J v SSHD is an interesting judgment considering Blake J had taken an opposite view in R (AA) v SSHD [2011] EWHC 2146 (Admin), where he accepted that the Hampshire age assessment was flawed but found that given the FTT looked at the issue of age in an appeal (where the appellant was not represented) and found the appellant to be an adult, the SSHD could not be expected to make its own further inquiries as to the fact of the child’s age even though the SSHD was aware that it was a matter in dispute. Following judicial review proceedings, Cardiff social services accepted the child’s claimed age. Blake J held that the fact that the child subsequently was found as a matter of precedent objective fact to be a child did not render the period of detention prior to the resolution of the age dispute unlawful. AA is on appeal with a substantive hearing listed for 6th / 7th March 2012, Sir Richard Buxton having granted permission to appeal. The point of law to be considered by the Court of Appeal is an interesting one, whether the Secretary of State could rely on a mistakened fact to justify exercising the power to detain. In the light of J v SSHD, it may be that Blake J’s analysis would need to be carefully scrutinised.

37. In detained fast-track cases, it has now been held by the Court of Appeal that where a putative child wishes to secure his own evidence (e.g. independent social work report or some other expert / further evidence) to challenge the dispute of age, the tribunal must adjourn the hearing to allow the putative child to obtain such evidence and if necessary, taken the case of the detained fast track as fairness requires that the putative young person has the opportunity to answer the case against him by way of evidence: see SH (Afghanistan) v SSHD [2011] EWCA Civ 1284. This adjournment / removal from the detained fast track must be granted unless it can be shown to be pointless to allow the young person to obtain such evidence.

38. This legal test established, i.e. whether it is pointless to allow an adjournment / take a case out of fast track where there might be evidence to be obtained by the appellant, is not limited to age dispute claims. It will make it very difficult for any case to remain within the DFT where there is a genuine dispute on which the appellant wishes to adduce relevant evidence.

Removal Cases
39. ZH was a deportation case involving a Tanzanian citizen who arrived in the United Kingdom at the age of 20 and unsuccessfully claimed asylum on three separate occasions. Her immigration history was described as being “appalling” and as involving fraudulent claims for asylum. She met and formed a relationship with a British citizen two years after her arrival in the United Kingdom and they had two children who were aged 12 and 9 at the time of the hearing in the Supreme Court. The children had lived in the UK all their lives, nearly all of the time at the same address; they attended local schools. The parents separated after eight years in 2005 and the father was diagnosed with HIV and, although he continued to see his two children regularly, was unable to provide a home for them. The Asylum and Immigration Tribunal found that the two children, who were British citizens, could reasonably be expected to go to Tanzania with their mother when she was returned there on the basis that their father could be expected to travel there from time to time to visit them.

40. The Supreme Court allowed the mother's appeal on the basis that her two children’s best interests were that they should remain in the United Kingdom and that, in consequence, she should be permitted to remain here with them exercising her right to a family life with them.

41. The leading analysis of the decision can be found in Lady Hale’s speech at §§30-33:

30. Although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8). In Wan, the Federal Court of Australia, pointed out at para 30 that, when considering the possibility of the children accompanying their father to China, the tribunal had not considered any of the following matters, which the Court clearly regarded as important:

"(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship, 'and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle' (Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5, (1998) 150 ALR 608, 614); (b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; (c) the loss of educational opportunities available to the children in Australia; and (d) their resultant isolation from the normal contacts of children with their mother and their mother's family."
31. Substituting "father" for "mother", all of these considerations apply to the children in this case. They are British children; they are British, not just through the "accident" of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate in their own community (as might have been the case, for example, in Poku, para 20, above). But it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well.

32. Nor should the intrinsic importance of citizenship be played down. 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. They will have lost all this when they come back as adults. As Jacqueline Bhaba (in 'The "Mere Fortuity of Birth"? Children, Mothers, Borders and the Meaning of Citizenship', in Migrations and Mobilities: Citizenship, Borders and Gender (2009), edited by Seyla Benhabib and Judith Resnik, at p 193) has put it:

'In short, the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond. Yet children, particularly young children, are often considered parcels that are easily movable across borders with their parents and without particular cost to the children.' 

33. We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. On the facts, it is as least as strong a case as Edore v Secretary of State for the Home Department [2003] 1 WLR 2979, where Simon Brown LJ held that "there really is only room for one view" (para 26). In those circumstances, the Secretary of State was clearly right to concede that there could be only one answer.

42. However consider the most recent judgment on this matter in R (CZ) v Secretary of State for the Home Department, extempore judgment 5/12/2011 per Mitting J where judicial review proceedings were brought challenging the removal of a mother with a young child following the refusal to accept their fresh claim. Mitting J held that concerns expressed about removing a child from the UK to live in China with her mother and father, after her mother’s application for asylum had failed, were insufficient to overturn the decision to remove her. The best interests of a child were not a trump card and in any event an immigration judge would conclude that the child’s best interests were served by her returning to China to live with her mother.

43. In the context of removal of lone children, the debate has centred on the legality of removals under Dublin II.

44. See R(TS) v SSHD [2010] EWHC 2614 (Admin) where Wyn Williams J held that s55, BCIA 2009 and its associated guidelines placed the SSHD under an irreducible duty to ask whether the proposed exercise of immigration powers (i.e. whether a child should be removed at all and in any event to another member-state under the Dublin II Convention) would safeguard and promote the child’s welfare or would be in her best interests.

45. The appellants in R(T and ors) SSHD [2011] EWCA Civ 1446 went further to argue that Article 6 of Dublin II did not permit unaccompanied asylum seeking minors to be removed at all to the Dublin State where they first claimed asylum. The Court of Appeal decided to refer this question to the Court of Justice of the European Union. Delivering the judgment of the Court, in R (MA, BT, DA) v Secretary of State for the Home Department [2011] EWCA Civ1446, Maurice Kay LJ pointed out that "Mr Knafler frankly acknowledges that .... he is taking a point which is at variance with what appears to be a common understanding among Member States and which is unsupported by any previous judicial decision ..... [or] any textbook .. [and is contradicted by] R(Mosari) v Secretary of State for the Home Department [2005] EWHC 1343 ... and [a paper by] the European Council on Refugees and Exiles". However, Maurice Kay LJ went on to say that "Notwithstanding the volume of contrary argument and practice stacked against them, we tend to the view that [the appellants'] construction may well be correct" and that "the construction issue at the centre of this litigation cries out for resolution because, if the appellants are correct in their construction, there would need to be an EU-wide change of State practice".

46. The Court of Appeal also doubted whether the Nasseri presumption applied to unaccompanied minors and whether "cogent reasons" were required, to doubt the quality of the welfare conditions likely to apply, before the Secretary of State was obliged to consider whether reception conditions in a Dublin II receiving State were such that it would safeguard and promote the welfare of a child to be removed there, pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009.

Asylum / Immigration Cases
47. Unsurprisingly the question of ‘best interests of the child’ is now well litigated in the context of the immigration tribunals following the Supreme Court’s judgment in ZH (Tanzania).

48. Below are a survey of a few of the cases:

49. In AJ (India) [2011] EWCA Civ 1191, which reflects the Court of Appeal’s most recent analysis of the subject, Pill LJ wrote:

43. Before expressing final conclusions I make the following general comments, in addition to those made in paragraphs above.

(a) As Baroness Hale stated at paragraph 33 in ZH, consideration of the welfare of the children is an integral part of the Article 8 assessment. It is not something apart from it. In making that assessment a primary consideration is the best interests of the child.

(b) The absence of a reference to section 55(1) is not fatal to a decision. What matters is the substance of the attention given to the "overall wellbeing" (Baroness Hale) of the child.

(c) The welfare of children was a factor in Article 8 decisions prior to the enactment of section 55. What section 55 and the guidelines do, following Article 3 of UNCRC, is to highlight the need to have regard to the welfare and interests of children when taking decisions such as the present. In an overall assessment the best interests of the child are a primary consideration.

(d) The primacy of the interests of the child falls to be considered in the context of the particular family circumstances, as well as the need to maintain immigration control.

44. The facts in the present case were considered by the Immigration Judge, in a manner whereby he was treating the best interests of the child as a primary consideration. D's age was such that there could be no consultation with him, as required in the guidance with older children, nor are other considerations suggested to be relevant. It is not suggested that there are medical or other needs which point towards continued residence in the United Kingdom. “

50. In LD [2010] UKUT 98 (IAC) (a case predating ZH (Tanzania) but cited with approval in AJ (India)), Blake J referred to Article 3 of the UNCRC and also stated in paragraph 26:

"26. Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life. Both principles are engaged in this case.”

51. In EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the Tribunal wrote at para 308(vi):

“Even where neither the children nor the parents has the status of a British citizen, the welfare of the children is a primary consideration in administrative action affecting their future and accordingly the balance of competing interests under Article 8 must reflect this factor as a consideration of the first order, albeit not the only one (see LD… and ZH (Tanzania) ….”).

52. At para 308(viii), in the context of considering the Article 8 proportionality assessment, the Tribunal added that:

“In the absence of any other policy guidance from the Secretary of State, it remains legitimate for Immigration Judges to give some regard to the previous policy that seven years residence by a child under 18 would afford a basis for regularising the position of the child and parent in the absence of conduct reasons to the country, in making a judicial assessment of whether removal is proportionate to the legitimate aim having regard to the best interests of the child.”

53. In E-A (Article 8 –best interests of child) Nigeria [2011] UKUT 00315(IAC) the head note to the decision states:

(i) The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii) Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case.

(iii) During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian. Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well-being.

(iv) Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v) The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

Social Care Cases (Age Disputes)
54. In the social care arena, the most hotly disputed issue relating to migrant children has been age disputes.

55. Following the Supreme Court’s decision in A v Croydon LBC [2009] UKSC 8, the fact of age is a precedent objective fact which admits only one right answer. This means that the decision as to what age a child is cannot be subject solely to the evaluative judgment of a local authority, or for that matter, UKBA. That however does not mean that the local authority / UKBA is not expected to carry out a lawful assessment of age and to make a rational determination on what the putative child’s age is having regard to the well established guidelines set out in B v Merton LBC [2003] EWHC 1689 (Admin), and affirmed this year by R (FZ) v LB of Croydon [2011] EWCA Civ 59.

56. If there remains a dispute as to the child’s age, the Court is the ultimate arbiter of the fact of age: see Lady Hale at §33 and Lord Hope at §51-54.

57. How should the Court go about doing so?

58. The following principles have now been developed in the context of age disputes:

(i) The task is to determine the fact of the child’s date of birth, not just whether he is a child / adult: §§9-10 of F v Lewisham [2009] EWHC 3542 (Admin) per Holman J.
(ii) There is no burden on the child to prove his age to the local authority or the immigration authority. At the initial assessment stage, the process is an inquisitorial one in which the social workers are expected to elicit information from the child about his social, educational, developmental and family history; questions of credibility may arise in this context but cannot be solely determinative of age: §§3 & 29 of FZ v Croydon; see also §§28 & 35 of Merton.
(iii) At the permission stage, the task of the Court is one of assessment, not of imposing on the child a burden to prove that he is arguably the date of birth he asserts to have: §7, FZ.
(iv) A narrative oral history given about a young person’s life which is credible and consistent with his claimed age will more likely be accepted. Conversely however that a young person may lie about reasons for leaving his country of origin does not necessarily mean that he is lying about his age: §28 of Merton.
(v) Social workers may be able to judge a young person’s general appearance and demeanour, and make a general credibility judgment from the manner in which he answered their questions, it does not follow that the court would be bound to make the same judgments; nor is general credibility, judged by others, alone sufficient for the court to refuse permission for a factual hearing before the court when it is for the trial judge to determine in a disputed case the fact of a young person’s age: §29 of FZ.

59. At the permission stage, the test is whether the material before the Court, taken at its highest, raise a factual case which could not properly succeed at trial. If it cannot, then permission should be refused. If it can, then permission should normally be granted subject to questions about delay, whether the claim is academic, to be considered below.

60. “Taken at its highest” means deciding the case assuming most favourably for the claimant. It is in that sense a low threshold although it must be borne in mind the test is still one of arguability / realistic prospect of success: see §14 of F v Lewisham.

61. What of the substantive case then? What is the approach to be taken by the Court? The process of judicial reasoning, even at the substantive stage, is one of assessment in which the Court is the fact-finder whose decision is not fixed by the positions of the parties, i.e. the Court is not asked to choose between two competing dates of birth produced by the claimant child and the local authority / immigration authority.

62. See R (MC) v Liverpool City Council [2010] EWHC 2211 (Admin), Langstaff J at §5:

It seemed to me, and in this I am supported by the submissions of Mr. McGuire Q.C. for the defendants, with which I do not understand Mr. Suterwalla to disagree in his submissions, that the process is one of assessment. It is not in reality choosing between one of two alternatives, one or the other of which must represent the fact. A person’s age, if it is to be assessed, can fall within a range. Here I accept what Liverpool says is one end of the range and what Cheryl Hall says is at the other, but the assessment may fall within the limits of that range.

63. Ouseley J in R (CJ) v Cardiff County Council [2011] EWHC 23 (Admin) at §81 agreed with this analysis with the caveat that “that may not always be appropriate where serious issues arise, as here, of credibility and false documentation concerning a large and crucial gap. Ouseley J distinguished the claimant in CJ from that in MC on the basis of the incredibility of the claimant in CJ and the unreliability of the documents he reduced: see §79.

64. It was on this basis that Ouseley J found it appropriate to resort to the burden of proof: §§126-127. (Ouseley J granted permission to appeal in CJ with the hearing listed to be heard on 1st / 2nd December 2011.) But this finding of Ouseley J’s in CJ does not diminish the principle, endorsed by the Learned Judge, that in the event of ignorance or uncertainty, the process is one of assessment rather than adjudicating on competing positions. Ouseley J's analysis of the burden of proof being relevant was subsequent set aside by the Court of Appeal in December 2011.

65. What about delay in bringing a judicial review challenging age? The observations of the Court of Appeal in FZ and Holman J in F v Lewisham suggest that the 3-month time limit still applies to age dispute challenges as they are still brought by way of judicial review.

66. In YA (Nigeria) v Hillingdon LBC [2011] EWHC 744 (Admin), it was argued that the right to identity (under Article 8, ECHR and Article 8, UN Convention on the Rights of the Child) govern the precedent fact of age and thus to deny the child the opportunity to have that fact determined has serious and adverse consequences to her entitlements to appropriate social care, health and educational services as well as how the immigration authority would approach the assessment of her immigration claim. Thus it was argued that the concept of a 3-month time limit imposed by the norms of judicial review should not apply in the context of an age dispute. Keith J rejected this argument in reliance on the bare reasoning that the Supreme Court preserved the jurisdiction of judicial review in the context of age dispute and therefore the normal rules of judicial review should apply to age disputes.

67. He however enlarged the time limit in the case of Y on the basis that the young person could not have properly challenged the Hillingdon age assessment at the material time when the time-limit expired as she had not had disclosure of the social services records relied upon apparently to dispute her age. She also was limited at the time to a Wednesbury challenge to the age dispute as it was at the time a pre-A v Croydon case. Without social services disclosure, it would have been difficult to show the irrationality of the age assessment. Furthermore, legal aid funding had been knocked back on several occasions and it was only following the change in the law on age dispute challenges following the Supreme Court’s judgment in A v Croydon that funding was restored and the merits of the challenge became apparent. Thus although the claim was brought 9 months out of time, Keith J felt it was justified to extend the time limit to allow the claimant in that case to bring her age dispute challenge. She went on to win the age trial, obtaining a declaration as to her claimed date of birth.

68. Can an age dispute ever be academic? There can only be rare circumstances where it can be envisaged that the resolution of an age dispute would be academic, even if the young person has already passed his / her 18th birthday on his / her own case. Below are scenarios in which the age dispute will not be academic:

69. Scenario 1: If the child claims to be under 18 but has been assessed to be over 18 – this is an obvious category where the dispute over age is entirely relevant as it will have a direct and real imminent impact on the assessment of the child’s immigration claim as well as his access to social care support.

70. Scenario 2: Even if the young person is 18 on his own claimed age, it remains relevant to consider whether the young person was a child when he first presented to the local authority / immigration authority. For social care purposes, if he was under 18 and he would have otherwise been provided with accommodation and support from social services under s20, Children Act 1989, then he could potentially have acquired leaving care entitlements (if accommodated for more than 13 weeks), and nevertheless be in ‘priority need’ under the Homelessness (Priority Need) Order 2000 if accommodated by social services any time before he turned 18.

71. For immigration purposes, consideration would have to be paid as to whether by virtue of social services’ and immigration authority’s unlawful determination that he was over 18 when he was in fact a child, he was deprived of the benefit of the discretionary leave policy for UASCs operated by the SSHD. If so, whether the deprivation was an abuse of power: see S v SSHD [2007] EWCA Civ 546 per Carnwarth LJ at §§45-47; and Moore-Bick LJ at §§69-72:

a. Where a public authority has acted unlawfully in the past, and
b. Its past unlawful actions have given rise to unfairness to an individual which cannot now be reversed, and
c. The public authority has the power to otherwise remedy that unfairness and
d. There are no countervailing considerations of public interest
e. The court may hold on an application for judicial review that the public authority should be obliged to exercise its discretion so as to remedy that unfairness.

72. Scenario 3: If the child claims to be 14 but is assessed to be 16, whilst it may not be relevant from a pure immigration perspective, given that all the tribunal will be concerned is whether the young person is a child, and thus whether s55, BCIA 2009 applies, it remains relevant as even the assessment of a child being 16 instead of 14 could be used by the SSHD to draw an adverse inference as to the child’s general credibility.

73. Furthermore, there is a more direct and obvious impact on the child’s longer term welfare if he were to be granted some form of leave to remain.

74. If under 16, the child would be of compulsory school age and entitled to a school place in mainstream schooling. He would also more likely than not be placed in a foster care placement, which for a lone child without family could make a significant difference in terms of his emotional well-being.

75. Any concession made in the context of the immigration case as to the child being 16 instead of 14 could have an unintended adverse impact on any age dispute challenge the child may wish to bring in the context of accessing more appropriate social care services.

76. It must also be recalled that a finding by the Tribunal on age is not binding in rem, and thus even if refugee status / some form of leave to remain is granted to a young person following a positive finding on age by the First-Tier Tribunal and that finding is not appealed, the FTT’s finding on age cannot bind the local authority to accept the child’s age: see PM v Hertfordshire CC [2010] EWHC 2056 (Admin). This was affirmed recently in AS v LB of Croydon [2011] EWHC 2091 (Admin) in which a declaration was sought by the claimant child and granted by the High Court (HHJ Anthony Thornton Q.C.) which made the fact of the claimant’s age binding in rem on the world. It is clear from both PM and AS that winning in the tribunals on age does not / may not resolve the question of age for the appellant child. Great care needs to be given to the potential impact on a child’s best interests and welfare of putting the child through repeat hearings where he is subjected to cross-examination if he wins at the FTT / UT on age but nevertheless his age is disputed by the local authority.

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