The applicant, Zaira Tinizaray and her dependants were all Ecuadorian nationals. She challenged by way of judicial review four UKBA decisions made between 2009-2011 refusing her application for indefinite leave to remain. In each of the decisions UKBA had refused to grant ILR to the applicant, her elderly mother and her daughter. The original ILR application was based on the seven year concession (DP5/96).
The circumstances of the applicant were that she and her mother had arrived illegally in the UK in 2001. Zara Tinizaray, the applicant was pregnant on arrival in the UK and gave birth to her daughter Angeles in 2002. The family continued to reside in the UK . Little is known about Angeles’s father save that he was Ecuadorian, remained in Ecuador, and had never had contact with Angeles since her birth. Angeles did not travel back to Ecuador.
The applicant challenged the various UKBA decisions on the basis that they were inconsistent with Article 8 ECHR. They also therefore raised the question of the correct application of section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children)
UKBA’s four decisions should be set aside as neither had been properly informed by what was in Angeles’ best interests.
The best interests of the child must be a primary consideration in decisions of this kind, and could not have been in the above circumstances.
Furthermore, each family member should have been considered seperately given each had seperate, albeit related, Article 8 ECHR interests.
The judgment makes useful reading as it summarises the approach to be taken to children in cases involving Article 8 ECHR, and therefore Section 55 of the BCIA 2009. At para. 13 HH Judge Anthony Thornton summarises the position in these terms:
(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
In considering what should be taken into account when contemplating the welfare and best interests of a child reference should be made to section 1 (3) of the Children’s Act 1989 which states:
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
HH Judge Anthony Thornton QC goes on to note:
It is also clear that the decision-maker was greatly hampered by the paucity of the information supplied by those preparing, or advising on the preparation of, the various applications made by and on behalf of the family members. … As the guidance makes clear, 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
Free Movement in his analysis also notes the implications that flow from the above paragraph for proceedings in these sorts of cases before the Tribunal.