The best interests of children in immigration law

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1 LAW CENTRE (NI) INFORMATION BRIEFING March 2013 The best interests of children in immigration law In brief Article 3 of the UN Convention on the Rights of the Child stipulates that the best interests of the child must be treated as a primary consideration in all actions. This briefing looks at the quite recent dynamic progression of legislative change and judicial interpretation regarding children s rights within the context of immigration law in the UK, with particular focus on the best interest principle. The information contained in Law Centre (NI) Information Briefings is liable to change as legislation changes. Please refer to publication date and consult our website for updates.

2 Introduction Section 55 Borders, Citizenship and Immigration Act ( BCIA ) came into effect on 2 November This imposed for the first time a statutory duty on the Secretary of State to ensure that when UKBA caseworkers take decisions concerning children, the decisions safeguard and promote the welfare of those children. This duty extends to third parties acting on behalf of the Secretary of State when carrying out UKBA functions. It does not extend to children who are outside the UK. Following the introduction of s55, a UKBA Code of Practice was published entitled Every Child Matters: Change for Children. The Code defines the duty of safeguarding and promoting the welfare of children as: protecting children from maltreatment; preventing impairment of children s health or development (where health means physical or mental health and development means physical, intellectual, emotional, social or behavioural development); ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully. S55 and the Code impose other duties on the Secretary of State, including the requirement that the UKBA act according to the principle that children should have their applications dealt with in a way that is timely and that minimizes the uncertainty that they may experience. Whilst these moves were clearly welcomed by all working in the field, the question remained as to whether this duty equated to a legal obligation to apply the best interest principle in individual cases. Judicial interpretation of the rights of children in UK immigration law The introduction of the s55 duty allowed for the beginning of a new climate in immigration law and practice as they relate to children s rights. It paved the way for the courts to focus on what should be taken into account when considering cases that involve children who either are themselves subject to immigration control or are the settled children of a parent who is threatened with removal from the UK. The landmark judgment in the Supreme Court case of ZH (Tanzania) v SSHD (2011) UKSC 4 considered whether the removal from the UK of the mother of British citizen children would interfere with their right for respect to family life as enshrined in article Page 2

3 8 ECHR. In that case, the mother had made several applications to UKBA including claiming asylum three times, twice using false ID. While in the UK she met a British citizen man with whom she had two children who acquired British citizenship through their father. In 2005 the couple separated and sometime after that the mother, who was the children s primary carer, was threatened with removal from the UK. As well as being British citizens, the children had spent all their lives in the UK and the question was what impact their mother s removal would have on their article 8 rights. For the first time, the courts considered in detail where the best interest principle should sit when carrying out the necessary balancing exercise in an article 8 case and assessing whether a decision to remove an individual is proportionate when taking all relevant factors into account. In the judgment, Lady Baroness Hale held: in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means they must be considered first. They can, of course be outweighed by the cumulative effect of other considerations. (para 33) Lord Kerr continued that the best interests of the child are a factor that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless counterveiling reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result. (para 46) With regards to the British citizenship of the children, it was held that Although nationality is not a trump card it is of particular importance in assessing the best interests of any child. Lady Hale (para 30) Further, in accordance with article 12 UNCRC, ZH (Tanzania) highlighted the need for the decision maker to endeavour to ascertain the views of the child and, when considering the mother s poor immigration history, the court clarified that a child should not be held responsible for the acts or omissions of her/his parents. Hot on the heels of ZH (Tanzania), we received judgment in R (Tinizaray) v SSHD (2011) EWCH This case confirmed the role which the best interest principle must play in a case involving a child, as previously set out by the Supreme Court. The judgement also examined the extent of the Secretary of State s statutory duty under the s55 BCIA in these immigration cases. The facts concerned an Ecuadorian woman who had entered the UK illegally and later had a child. Her application to UKBA for indefinite leave to remain, including her mother and child as dependants, was refused. An appeal was lodged on the grounds that the Secretary of State had failed to comply with her statutory obligations under s55 BCIA to consider the welfare of the child. Page 3

4 In his judgment, HH Judge Anthony Sultan QC was very critical of the lack of evidence before the court regarding the child s circumstances. He set out guidance on what a decision maker considering a case involving a child should expect to obtain from the parties involved to ensure the outcome is compliant with s55. He held: it is not sufficient for the decision-maker to rely solely on information volunteered by a child s parent, particularly if it is clear that that information is either incomplete or potentially slanted. In such cases, further information must be sought by the decision-maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires and seeking or soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children s welfare groups. (para 24) Further, he set out guidance as to what should be taken into account in these cases: (1) 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. (2) 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. (3) 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. (4) 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. (5) 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. (para 13) Page 4

5 In addition, the judgment refers to the Children Act (1989) and sets out what the decision maker within the family law context must take account of when seeking to protect the welfare of an individual child. He held that these same considerations are relevant to the proper exercise of the s 55 duty in immigration cases involving children. This is of course equally applicable to our Children (NI) Order In considering what should be taken into account when considering the welfare and best interests of a child, it is clearly relevant to have regard to the matters specified in the statutory checklist provided for by section 1 of the Children s Act 1989 which reads as follows: 1 (1) When a court determines any question with respect to - (a) the upbringing of a child; or (b)the administration of a child s property or the application of any income arising from it, The child s welfare shall be the court s paramount consideration. (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to - (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d)his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g)the range of powers available to the court under this Act in the proceedings in question. These matters must be taken into account whenever a court is concerned with an application for a prohibited steps order, a residence order, a specific issue order - concerned with giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility Page 5

6 for a child - or a special guardianship order. These decisions are ones which require the welfare and bests interests of a child to be taken into account. The same matters are therefore clearly ones that should be taken account of when a decision-maker is making a decision that requires the exercise of a section 55 duty. (para 19 and 20) Therefore ZH (Tanzania) and Tinizaray are unambiguous in their emphasis on the importance of children s rights in the context of immigration law in the UK. Changes to the immigration rules In July 2012, the government introduced significant changes to the Immigration Rules. The announcement stated that the changes incorporate into the Rules, amongst other things, the requirements that must be satisfied for a child s case to succeed and an assertion that the changes will protect children s best interests. The amendments which are relevant for the purpose of this briefing are contained primarily in the Rule of EX1 of Appendix FM Family Members. EX1 states: This paragraph applies if (a) (i) The applicant has a genuine and subsisting parental relationship with a child who: (aa) (bb) (cc) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied; is in the UK; is a British citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application ; and (ii) it would not be reasonable to expect the child to leave the UK. In the policy section on the UKBA website (www.ukba.homeoffice.gov.uk), caseworkers are given guidance relating to factors which should be taken into account when considering an application based on paragraph EX1 of the Rules. Some of this section is set out below in italics, with a focus on the main questions that are posed. Please note that those sections which are not in italics are Law Centre advice regarding the type of documentary evidence an applicant should seek to lodge with UKBA. Is there a genuine and subsisting parental relationship? Does the applicant have a parental relationship with the child? Page 6

7 What is the relationship? Biological, adopted, step child, legal guardian? Are they the child s de facto primary carer? Is it a genuine and subsisting relationship? The applicant should describe the relationship between the child and parent in detail and state: Does the child live with the person? Where does the applicant live in relation to the child? How regularly do they see one another? Are there any relevant court orders governing access to the child? Is there any evidence or other relevant information provided within the application for example, views of the child, other family members or from social work or other relevant professionals? To what extent is the applicant making an active contribution to the child s life. Factors which might provide close scrutiny include: there is little or no contact with the child or contact is irregular any contact is only recent in nature support if only financial in nature, there is no contact or emotional or welfare support the child is largely independent of the person. Is the child a British citizen or have they been in the UK for a continuous period of seven years? Where a child has been living in the UK for seven years, all relevant evidence should be gathered and submitted to establish this fact. ZH (Tanzania) made it clear that, although citizenship is of particular importance when making a proportionality assessment, it is not a trump card. As much detailed evidence as possible should therefore be provided regarding the life the child has established in the UK to date. Would it be unreasonable to expect the child to leave the UK? The applicant should make reference to, and provide evidence of, past or existing medical conditions and/or involvement, if any, with social services, if relevant, in order to set out clearly why leaving the UK would have a detrimental impact on the child. Any reference to difficulties which would be faced by the child in the country abroad should by supported by evidence where possible. Page 7

8 Where a non British citizen child has been in the UK for more than seven years: UKBA will look to see whether it would be reasonable to expect the child to move to her/his parents country of origin. Therefore, as well as making arguments in relation to EX1 regarding the child, the parents should lodge evidence regarding the strength of their own connections to the UK in accordance with article 8 ECHR family and private life. UKBA guidance states that caseworkers should take into account the following considerations: whether there would be a significant risk to the child s health; for example, if there is evidence that the child is undergoing a course of treatment for a life threatening or serious illness and treatment is not available in the country of return; whether the child would be leaving with its parents ; the extent of wider family ties in the UK you should consider the extent to which the child is dependent on wider family members in the UK; whether the child is likely to be able to (re)integrate readily into life in another country. Relevant factors weighing in favour of successful (re)integration include: whether the parent(s) or child is a citizen of the country and so be able to enjoy the full rights of being a citizen in that country; whether the parents and/or child has lived or visited the country before for periods of more than a few weeks ; whether the child or parents have existing family or social ties with the country ; whether the child has attended school in that country; any country specific risks ; other specific factors raised by or on behalf of the child. Families or children may highlight the differences in quality of education, health and wider public services and economic or social opportunities between the UK and country of origin and argue that these work against the best interests of the child. Where a child has been in the UK for less than seven years: Although the UKBA states that seven years is the relevant period a non-eu child must have resided in the UK to benefit from the provisions contained in EX1, a child may be able to argue that s/he has established a private/family life in the UK in a shorter period of time. Therefore, all factors should be placed before UKBA with supporting evidence to establish any extenuating and/or mitigating circumstances. Page 8

9 An application can be lodged with UKBA on behalf of a child who is in the UK unaccompanied or who is part of a family unit. Either way, the proper consideration of the child s best interests in accordance with s55 BCIA and the case law referred to above are relevant. The different forms and fees, depending on the child s circumstances, can be found on the UKBA website. It is the responsibility of applicants to establish their own case with UKBA and present all relevant evidence depending on their individual circumstances. In a case involving a child, you should picture build the circumstances of her/his private and/or family life in the UK, incorporating some of the following evidence where both feasible and appropriate: photographs with family members in the UK to establish family and social ties in accordance with article 8 rights; birth certificates to establish family relationships with those in the UK who have leave to remain or EU citizenship; letters from social workers setting out what is best for that child in accordance within the best interest principle enshrined in the NI Order; letters from schools to demonstrate that the child has been in attendance there and, if relevant, that s/he is about to sit exams; medical reports to establish ongoing medical treatment and care, and setting out the impact on the child if that treatment were to stop via her/his removal from the UK; court orders to establish where custody has been awarded in favour of a parent who is in the UK in accordance with the best interest principle; evidence of involvement with church and community groups letters and photos; statements of evidence regarding the child s own views; supporting letters from family and friends; any other evidence which establishes the child s private/family life in the UK. The application should be accompanied by a covering letter setting out the history of the relationship between the child and her/his family members. This should be accompanied by, and cross referenced with, any evidence supporting the child s family relationships and ties to the UK or setting out the extent to which s/he has established her/his private life here. The application form, covering letter and documents, in original format, should be sent by Special Delivery to UKBA. A copy of all documents submitted should be kept. Page 9

10 Conclusion The coming into effect of s55 and the decisions of the courts in ZH(Tanzania) and Tinizaray 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. These judicial decisions focused consideration of children s rights so that a child s removal from the UK with her/his parent/s can no longer be viewed as a secondary result of their parent s removal. It must instead be considered as a discrete issue with an individual case by case assessment of the child s best interests. Since the changes to the Immigration Rules in July 2012 regarding, amongst others, children in the UK, the courts have had some opportunity to consider what impact those Rules have on article 8 ECHR rights and the application of the best interest principle. Whilst there have to date been some welcomed decisions on these issues, it remains to be seen how the new Rules will be further defined by the courts. Law Centre (NI) Law Centre (NI) offers an advice line to practitioners in community care, employment, immigration, mental health and social security. We also offer training courses for practitioners and information through our publications and website. We hold regular legal practitioner meetings in social security, community care, mental health and immigration where practitioners can exchange expertise and receive important updates. Immigration advice: Mon to Fri 9.30am to 1.00pm, and For more information about the Law Centre: Law Centre (NI) March 2013 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying and recording, without the prior written permission of Law Centre (NI). Law Centre Page 10

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