While one Brenda (in Yarl’s Wood) awaits deportation from the UK to a certain death in Uganda, another Brenda in the Supreme Court of the United Kingdom (Baroness Hale of Richmond of course) has made some particularly telling observations regarding the status of children in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.
The case exhibits that a mother with an atrocious immigration history can be allowed to stay in the UK on grounds which arise because of her child’s British citizenship (who could not be subjected to a deportation order).
Yet the child would have to leave the UK with her mother (who was the primary carer) as the child would find it impossible to stay in the UK on their own.
The Court found that to banish British children to another country because of the perverse immigration history of a parent is incompatible with the obligations of the UK under the United Nations Convention on the Rights of the Child which create a duty for the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009. The UKSC took the opportunity to harmonise existing western common law jurisprudence in ZH (Tanzania)and, as in the case of HJ (Iran), the Australian jurisdiction featured quite significantly in the Baroness Hale’s speech.
This appeal was unanimously allowed by the Supreme Court which required that while making the proportionality assessment under article 8 of the ECHR, children’s interests must remain paramount and must be a primary consideration. A child’s “best interests” were connected to the well-being and welfare of the child. In considering these interests and whether it was reasonable to expect the child to live in another country, it was imperative to ascertain the child’s own views.
In the context of the appeal, at paragraph 13, Lady Hale summed up the SSHD’s position as:
The Secretary of State now concedes that it would be disproportionate to remove the mother in the particular facts of this case. But she is understandably concerned about the general principles which the Border Agency and appellate authorities should apply.
Lady Hale also stipulated at paragraph 37 that:
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.
At paragraph 46 Lord Kerr agreed with Baroness Hale and stated that:
It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, 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 countervailing 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.”
