Guest post by Edward Nicholson, Barrister at No 5 Chambers, specialising in Immigration, Asylum and Nationality. We have previously posted about the ZH (Tanzania) case. Here, Edward looks at it in more detail and also considers Zambrano.
Baroness Hale succinctly explained what the Supreme Court’s judgment in ZH (Tanzania) v SSHD  UKSC 4 is about:
“The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this, however, is a much more specific question: 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?”
To answer the first of these questions the Supreme Court closely analysed national and international cases on Article 3.1 of the United Nations Convention on the Rights of the Child. Article 3.1 reads:
“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”.
The Supreme Court identified this as “a binding obligation in international law”.
By section 11 of the Children Act 2004 the spirit of Article 3.1 has been translated into UK legislation, imposing this binding obligation upon a range of public bodies to carry out their functions having regard to the need to “safeguard and promote” the welfare of children.
However the UK maintained an exemption with regards to immigration decisions until 2008. Thereafter the obligation was extended to all functions of the United Kingdom Border Agency by section 55 of the Borders Immigration and Asylum Act 2009, which took effect in November of 2009.
It’s important to see the judgment in ZH in this context, because the judgment is really nothing less than the logical consequence of the proper recognition of the UK’s obligations under Article 3.1.
There are two essential principles which emerge from the judgment. The first is concerned with the meaning of “the best interests of the child shall be a primary consideration”.
Decisions of the High Court and the Federal Court of Australia led the Supreme Court to its conclusion that Article 3.1 required decision makers to identify children’s best interests first – and then consider whether these best interests could be outweighed by any other considerations.
Current statutory guidance to UKBA staff as to how section 55 of the 2009 Act is to be applied instead indicates that while children’s best interests are a primary consideration they are merely one to be considered alongside others – namely the need to control immigration. That such an approach is incorrect in the light of the decision in ZH has been made clear in three recent cases from the Court of Appeal and the Administrative Court.
Secondly what the child’s parents had or hadn’t done would not, in most cases, be likely to outweigh those best interests.
This principle pervades the judgment . It is the reverse of the biblical warning – the sins of their parents cannot be visited upon the children of people who, like ZH, had an “appalling immigration history”.
As Lord Hope put it:
“It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.”
The Supreme Court also emphasised the obligation in Article 12 of the Convention – the need for children to be afforded a legal presence and a legal voice in decisions which affect them.
All of this heralds a new era for children’s rights – and not just in immigration cases – section 11 of the Children Act 2004 lists thirteen different kinds of proceedings in which the obligation bites, including education law and community care law.
The nationality issue, while secondary, also marks a turning point in the law. Case after case based on similar facts failed before the European Commission in the 1990s. The Commission took the view that the British nationality of the proposed deportee’s children was a matter of no great importance. Baroness Hale puts this down to the belief (now emphatically rejected) that it was ok for children to be deprived of the advantages of their nationality, in terms of the benefits that go with UK citizenship, because of their parents’ misdemeanours.
The Court concluded that the Court of Appeal had failed to take proper account of the benefits of the children’s UK citizenship and had instead limited themselves to asking whether in cases like this one British nationality was a “trump card”. The Supreme Court accepted that it was not a trump card but noted that it was nonetheless a matter of great significance.
As fate would have it – in addition to ZH decision makers will now also have to take account of the equally significant judgment of the Court of Justice of the European Union’s Grand Chamber judgment in Gerardo Ruiz Zambrano v Office national de l’emploi C-34/-09, delivered on 8 March 2011.
In that case the Luxembourg Court found that the Colombian parents of two children who were born in Belgium, and who are therefore European Union (EU) citizens must be granted residence and work permits enabling them to live and work in Belgium. To fail to do so would be to deny the children the right to full enjoyment of their rights as EU citizens under Article 20 of the Treaty on the Functioning of the European Union.
Applying this judgment to the facts of ZH’s – she would also have to be granted a residence permit in the UK, since her children are both British and therefore also EU citizens.
Zambrano has dramatic implications for all family members of EU nationals living in their own countries, which will have to be tested in future cases.
Comparing the two cases however it seems clear that ZH is about children, and Zambrano is about nationality.