Court/Judicial body: Supreme Court of the United Kingdom
Date: 1 February 2011 CRC
Provisions: Article 3: Best Interests of the Child Article 7: Name and Nationality Article 8: Preservation of Identity Article 9: Separation from Parents Article 12: The Child’s Opinion
Other international provisions:European Convention on Human Rights: Article 8United Nations Declaration on the Rights of the Child 1959Convention on the Elimination of All Forms of Discrimination against Women: Articles 5(b) and 16(d)International Covenant on Civil and Political Rights 1966: General Comments 17 and 19European Union’s Charter of Fundamental Rights: Article 24United Nations Committee on the Rights of the Child (2005): General Comment 6
Background: ZH, a national of Tanzania who arrived in the UK in 1995 at the age of 20, made three unsuccessful claims for asylum, one using her own identity and two using false identities. In 1997, she met and formed a relationship with a British citizen. They had two children, both of whom are British citizens. The parents separated in 2005 and the children remained with their mother. The father continues to see the children regularly, visiting them approximately twice a month for 4 to 5 days at a time. The father has HIV, lives on disability allowance with his parents and wife, and is reported to drink a great deal. The mother was ordered to be deported from the UK to Tanzania, and appealed that decision. Her appeals were dismissed by the Asylum and Immigration Tribunal and by the Court of Appeal, and she brought a final appeal to the Supreme Court on the grounds that her removal would constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by Article 8 of the European Convention on Human Rights.
Issue and resolution: Immigration; best interests of the child. The appeal should be permitted; in assessing whether to remove a foreign national and his or her children from the UK, the best interests of the children must be a primary consideration.
Court reasoning: As mandated under the Convention on the Rights of the Child, the best interests of the child must be considered first when assessing whether there has been a violation of the right to repsect for private and family life as alleged by the children’s mother. Specifically, relevant factors to consider in determining whether it would reasonable to expect any child to move to another country include how integrated the child is in his or her current country and how long that child has been absent from the other country; where and with whom the child would live in the other country, and the potential childcare arrangements that would be made; and the strength of the child’s relationships with parents or other family members that would be severed if the child has to move away. In this case, the child’s identity as a citizen of the United Kingdom must also be considered as nationality is of particular importance in assessing the best interests of any child. Given this, the fact that the children have lived in the United Kingdom all their lives, and that they would be forced to move to a country which they do not know and be separated from a parent with whom they have regular contact, it would be disproportionate to deport the mother from the UK. Excerpts Citing CRC and Other Relevant Human Rights 12. Mr Manjit Gill QC, on behalf of the appellant mother, does not argue in this Court that the citizenship of the children should be dispositive in every case. But he does argue that insufficient weight is given to the welfare of all children affected by decisions to remove their parents and in particular to the welfare of children who are British citizens. This is incompatible with their right to respect for their family and private lives, considered in the light of the obligations of the United Kingdom under the United Nations Convention on the Rights of the Child. Those obligations are now (at least partially) reflected in the duty of the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009. … The UNCRC and the best interests of the child 21. It is not difficult to understand why the Strasbourg Court has become more sensitive to the welfare of the children who are innocent victims of their parents’ choices. For example, in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, the Court observed that “the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken . . . of ‘any relevant rules of international law applicable in the relations between the parties’ and in particular the rules concerning the international protection of human rights”. The Court went on to note, at para 135, that “there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount”. 22. The Court had earlier, in paras 49 to 56, collected references in support of this proposition from several international human rights from the second principle of the United Nations Declaration on the Rights of the Child 1959; from Article 3(1) of the Convention on the Rights of the Child 1989 (UNCRC); from articles 5(b) and 16(d) of the Convention on the Elimination of All Forms of Discrimination against Women 1979; from General Comments 17 and 19 of the Human Rights Committee in relation to the International Covenant on Civil and Political Rights 1966; and from Article 24 of the European Union’s Charter of Fundamental Rights. All of these refer to the best interests of the child, variously describing these as “paramount”, or “primordial”, or “a primary consideration”. To a United Kingdom lawyer, however, these do not mean the same thing. 23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in Article 3(1) of the UN “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.” This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. 24. Miss Carss-Frisk acknowledges that this duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is 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” for the purpose of Article 8(2). Both the Secretary of State and the tribunal will therefore have to address this in their decisions. 25. Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply Article 3(1) of UNCRC and treat the best interests of a child as “a primary consideration”. Of course, despite the looseness with which these terms are sometimes used, “a primary consideration” is not the same as “the primary consideration”, still less as “the paramount consideration”. Miss Joanna Dodson QC, to whom we are grateful for representing the separate interests of the children in this case, boldly argued that immigration and removal decisions might be covered by section 1(1) of the Children Act 1989: “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.” However, questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1: “The term ‘best interests’ broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: the best interests must be the determining factor for specific actions, notably adoption ( Article 21) and separation of a child from parents against their will ( Article 9); the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies ( Article 3).” This seems to me accurately to distinguish between decisions which directly affect the child’s upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death. 26. Nevertheless, even in those decisions, the best interests of the child must be a primary consideration. As Mason CJ and Deane J put it in the case of Minister for Immigration and Ethnic Affairs v Teoh  HCA 20, (1995) 183 CLR 273, 292 in the High Court of Australia: “A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.” As the Federal Court of Australia further explained in Wan v Minister for Immigration and Multi-cultural Affairs  FCA 568, para 32, “[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.” This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia. 27. However, our attention was also drawn to General Comment No 6 of the United Nations Committee on the Rights of the Child (2005), on the Treatment of Unaccompanied and Separated Children Outside their Country of Origin. The context, different from ours, was the return of such children to their countries of origin even though they could not be returned to the care of their parents or other family members (para 85). At para 86, the Committee observed: “Exceptionally, a return to the home country may be arranged, after careful balancing of the child’s best interests and other considerations, if the latter are rights-based and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights based arguments such as those relating to general migration control, cannot override best interests considerations.” 28. A similar distinction between “rights-based” and “non-rights-based” arguments is drawn in the UNHCR Guidelines (see, para 3.6). With respect, it is difficult to understand this distinction in the context of Article 8(2) of the ECHR. Each of the legitimate aims listed there may involve individual as well as community interests. If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country. It may amount to no more than that. … 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  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.” … 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  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. Consulting the children 34. Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child’s own views. Article 12 of UNCRC provides: “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” … 37. In this case, the mother’s representatives did obtain a letter from the children’s school and a report from a youth worker in the Refugee and Migrant Forum of East London (Ramfel), which runs a Children’s Participation Forum and other activities in which the children had taken part. But the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents’ this should not be taken for granted in every case. As the Committee on the Rights of the Child said, in General Comment No 12 (2009) on the Right of the Child to be Heard, at para 36: “in many cases . . . there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision-maker by the representative.” Children can sometimes surprise one.
CRIN Comments: CRIN believes that this decision is consistent with the CRC. As noted by the Court, States Parties to the Convention have an obligation to ensure that the best interests of a child must be a primary consideration in all proceedings that concern them. Deciding which country a child will live in is a particularly serious matter, and must only be taken with full respect for the child’s right to a nationality, an identity, and to stay in contact with both parents. The Court also wisely advised the immigration authorities to seek out the opinion of the children involved, as children capable of forming views should always have the right to express those views in an appropriate manner either directly or through a representive.
Citation:  UKSC 4
Link to Full Judgment: http://www.bailii.org/uk/cases/UKSC/2011/4.html