There are two recent cases to cover on this subject. The first is AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191, in which I was Shivani Jegarajah‘s junior, despite my puzzling omission from the court record (must sort that out), and the other is the more recent Upper Tribunal decision of MK (best interests of child) India [2011] UKUT 475 (IAC).

Both these cases are perhaps best viewed through the prism of the Hegelian dialectic I brought up recently in another post. They both seek to distinguish ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and resume immigration law ‘as normal’.

The facts in AJ were not terribly strong. The child in question was only two and therefore had no social or familial ties outside her nuclear family, who it was proposed would all be removed together this avoiding any family separation.

Importantly, the Court of Appeal rejected Zane Malik‘s argument that the Secretary of State had not considered the best interests of the child at all, not even being aware of the child’s birth, and that the tribunal should therefore, having been made aware of the child, have sent the case back to the Secretary of State for consideration by allowing the appeal on the ‘not otherwise in accordance with the law’ ground of appeal:

The tribunal has power to hear evidence, make findings of fact and decide points of law. On the material before it, the tribunal was entitled to conclude that the decision of the Secretary of State refusing leave to remain was, on the material before the tribunal, one on which the tribunal was able to make a judgment. What the tribunal could find on the merits in this case is for further consideration in this appeal, but I have no doubt that the tribunal was in law entitled to proceed.

This pretty much rules out automatic remittals. Some will consider it doubtful, though, that the tribunal can possibly place itself in an adequate position to consider best interests given that it is not an investigatory body and can take no proactive steps to gather evidence. No-one would dissent from the idea that section 55, the Article 12 UNCRC duty to hear the voice of the child and a best interests assessments generally all require proactive steps, as vividly illustrated in the Tinizaray case, so this issue may well be revived.

In AJ Pill LJ goes on to hold that an express reference to section 55 is not necessary in order for a decision to comply with the duty. This merely lends a higher authority to the same finding by Wyn Williams J in the pre-ZH case of R (on the application of TS) v SSHD [2010] EWHC 2614 (Admin).

No consideration is given in the AJ case to the role or weight or mechanisms for hearing the voice of the child. The child in question was only two years old, after all. This is a shame as these were the arguments our team were ready to run in that case with a 12 year old who was affected by the decision.

There are passages of the judgements of both Pill and Potter LLJ that could be read as suggesting that the best interests of a child do not need to be considered first or given primacy when assessing the outcome of a case but should be considered alongside other aspects of the case. This cannot possibly be a correct reading, though, given the clarity with which Baroness Hale expressed herself in ZH (Tanzania) and the unqualified support for her reasons given by the other judges of the Supreme Court in the same case.

Upper Tribunal judges Storey and Kebede sitting on the MK case would certainly, on the face of it, seem to agree with my last paragraph. See paragraph 19:

First of all it is clear from the judgments of their lordships in ZH (Tanzania) (Lords Hope, Brown, Mance and Kerr expressing full agreement with the reasoning of Baroness Hale) that whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), it is a matter which has to be addressed first and as a distinct stage of the inquiry. The decision maker has first to make a decision on what is in the overall best interests of the child and only then to assess whether those interests are outweighed by countervailing factors such as those concerned with the rights and freedoms of others, the effective maintenance of immigration control, prevention of crime, etc (Baroness Hale, para 33, Lord Hope, para 44, Lord Kerr para 46). The underlying rationale must be that unless, when children are concerned, the Article 8 proportionality assessment is conducted in this way there is a risk of the best interests of the child consideration wrongly taking into account extraneous factors such as the parents’ poor immigration history.

After this, the reasoning enters murky waters. The tribunal takes the approach that at as long as best interests are considered first in a purely chronological sense, those best interests can then be entirely disregarded. The outcome of the case is that a 12 year old child resident for over 7 years and who recently began secondary school as well as a 6 year old child born in the UK who has known no other home or culture are sent packing along with their parents. Both children expressed a desire to stay in the UK where their friends live.

The reasoning falls into the trap that the Supreme Court in ZHgave guidance on how to avoid: it is a negative consideration of how much harm removal will cause the children as opposed to a positive consideration of what would actually be in their best interests. The tribunal convince themselves that removal wouldn’t do THAT much harm to the children, so it was therefore right that they be removed alongside their parents. There is simply no sign in the determination that the panel takes on board the central message of ZH and the UNCRC, which is that children are independent human beings and rights holders and that the best interests of children are a primary consideration.