ZH, a national of Tanzania, developed a relationship with a British citizen in the UK that lasted 8 years, ending in 2005. They had two children who were 12 and 9 years of age – both British Citizens by descent.
ZH’s immigration history was described as “appalling”, not least because she had failed in three attempts to claim protection in the UK and in part by deception.
In relation to Article 8 ECHR, the Tribunal held that it would be proportionate for the children either to stay in the UK with their British father, and for their mother to return to Tanzania, or for the children to return with their mother to Tanzania and for their father to remain in the UK.
The issue before the Supreme Court centered upon the weight to be given to the best interests of children who are affected by a decision to remove or deport one or both of their parents from the UK, and in turn: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?
Counsel for the SSHD accepted that any decision to remove or deport, 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).
The SSHD and the Tribunal must therefore address this in their decisions. Both must treat the best interests of a child as “a primary consideration.” Although a decision maker could conclude that the strength of the other considerations outweighed the child’s best interests, the important thing is to consider those best interests first.
“Best interests” is a factor that “must rank higher than any other.” It broadly means the well-being of the child. The Court held it involves asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away.
In this assessment nationality is “a significant and weighty factor”. As citizens 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 lose all this when they come back as adults. On the facts therefore the Court observed ZH’s children:
‘….are British children … 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… 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.
Another important issue is that decision makers and representatives should be alive to all this and be prepared to ask the right questions. This may mean
“…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.”
Enlightened by international law, the child’s interests are robustly asserted by the Court as a paramount consideration in assessing proportionality per 8(2) ECHR. Applying the correct approach to a true assessment of any facts means it will rarely be proportionate to sever relationships between children and one or both of the children’s parents, especially if the child is a British citizen.