It is a decade since the UK agreed to lift its immigration reservation to the UN Convention on the Rights of the Child, recognising that “migrant” children are, well, children too. Section 55 of the Borders, Citizenship and Immigration Act 2009 was enacted to this end, creating a duty for public bodies to safeguard and promote the best interests of children in the UK. Therefore, when making an immigration decision, the Home Office must consider the best interests of a child who is in the UK. This means that families with children in the UK are sometimes able to make a case to remain in the UK, when they might otherwise be removed.

This article looks at the current law and policy in assessing the best interests of the child in an immigration application.

What does the UN Convention say?

It is helpful to keep in mind the Preamble to the UN Convention:

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance

[…]

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding […]

Article 1 confirms that “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. Article 2 of the Convention provides:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Article 3(1) says:

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.

And Article 9 provides:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

All these principles are relevant to immigration cases here in the UK, but we also need to look at how they are written into our domestic law.

What do the Immigration Rules and statute say?

Section 55 of the Borders, Citizenship and Immigration Act 2009 creates a statutory duty on public authorities:

(1) The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom…

These functions include “any function of the Secretary of State in relation to immigration, asylum or nationality” and “any function conferred by or by virtue of the Immigration Acts on an immigration officer”.

This duty is referred to as the duty to take into account the “best interests” of a child in making an immigration decision. A child’s best interests are not defined, but generally refer to the need for a safe environment, family and social relationships, development and identity needs, and taking into account the views of the child. If the Home Office fails to consider a child’s best interests in an immigration decision, that decision may be unlawful and therefore subject to legal challenge.

The Immigration Rules at paragraph 276ADE provide:

276ADE (1) The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: […]

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK;

Section 117B of the Nationality Immigration and Asylum Act, as amended, provides:

(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

These are important provisions which allow families with children to make an application for leave to remain based on the child’s continuous residence in the UK where the child has lived in the UK for seven years, and it would be unreasonable to require the child to leave the UK, or where the child is British.

Where the child has not lived in the UK for seven years, it is still possible to make an application under Article 8 of the European Convention on Human Rights, although it is more difficult to prove that removal of the child would be disproportionate.

What does Home Office policy say?

The Home Office policy Every Child Matters: Statutory Guidance confirms that the Section 55 duty includes:

preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);

[…]

undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully

[…]

Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made.

What is the relevant case law?

Despite the statutory duty enshrined in Section 55, the Home Office has sought to limit the best interests of children, rendering children victims of hostile environment. The courts have frequently emphasised the importance of children’s best interests in the immigration context. With this in mind, it is helpful to remind ourselves of the key judgments concerning the best interests of the child.

In ZH (Tanzania) [2011] UKSC 4, the Supreme Court held that the best interests of children are a primary consideration and although they will not always determine the outcome of a case, no other factor should be given more weight.

24. […] any decision which is 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). Both the Secretary of State and the tribunal will therefore have to address this in their decisions.

[…]

33. […] In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.

The Supreme Court in Zoumbas [2013] UKSC 74 approved seven principles to be borne in mind when considering the interests of the child in the context of an Article 8 evaluation. Lord Hodge said at paragraph 10:

1. The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;

2. In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;

3. Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;

4. While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;

5. It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

6. To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and

7. A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.

Mr Justice McCloskey in JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) found that the Section 55 duty is an unqualified duty (paragraph 6). He held that

1. the decision maker must be properly informed of the child’s circumstances; and
2. s/he must conduct a careful examination of all relevant information and factors.

In EV (Philippines) & Ors [2014] EWCA Civ 874, the Court of Appeal held:

A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.

This provides a helpful checklist of what the courts will look at when assessing best interests. Any application should seek to address these factors, with evidence. We cover evidence below.

The Court of Appeal in MA Pakistan [2016] EWCA Civ 705 said:

the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise […] After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK.

That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit.

Lord Justice Elias said at paragraph 103:

In my judgment, the observation of the judge to the effect that people who come on a temporary basis can be expected to leave cannot be true of the child. The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so.

There are two important points to note here:

1. after seven years’ continuous residence, a child should be granted leave to remain unless there are “good reasons” not to do so
2. however, seven years’ continuous residence is given more weight when a child is older

The headnote in Kaur (children’s best interests / public interest interface) [2017] UKUT 14 (IAC) reiterates that “in the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct”.

In MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 88 (IAC), the President of the Upper Tribunal held:

Both the age of the child and the amount of time spent by the child in the United Kingdom will be relevant in determining, for the purposes of section 55/Article 8, where the best interests of the child lie.

Thus, the question of when it is “reasonable” to require a qualifying child to leave the UK has been unclear.

Generally, the courts’ position is that after seven years, strong reasons are required to justify removal of a child from the UK (in the non-deportation context). The court will look at: the child’s age; their social, cultural and educational links in the UK; the stage of their education; how removal would impact their development; any educational or developmental needs they have which are being met in the UK; what difficulties they would face in the proposed country of return, e.g linguistic, cultural, financial.

The weight to be given to the above factors has been disputed, as can be seen from the case law above; in particular there has been a tension between the best interests of the child and the impact of the conduct of the parents (including immigration overstaying).

The Supreme Court’s short judgment in KO (Nigeria) [2018] UKSC 53 clarifies matters somewhat in respect of the behaviour of the parents. Colin has provided a case summary in his article here. In summary, the judgment confirms that where there is discretionary assessment of the impact of removal on a child using a “reasonableness” or “undue harshness” test, the conduct of the parent is irrelevant to that assessment of the impact on the child. This is a welcome restatement of the Supreme Court’s position in Zoumbas and ZH (Tanzania).

However, since KO (Nigeria), the Home Office has sought to argue in appeals before the immigration tribunal that where the parent has no right to remain in the UK, it would be reasonable in most cases for the child to leave the UK with the parent. This argument appears to suggest that section 117B (6) has no significance – which cannot have been the intention of Parliament!

The Upper Tribunal, chaired by President Lane, heard a three-day case on 13-15 February 2019 on this issue, with the intention of providing guidance on “reasonableness” in light of KO (Nigeria). A decision is awaited.

How is an application based on the best interests of the child made?

All immigration applications where a child in the UK is involved should raise the best interests of the child. How can this be done effectively?

First, it is important to set out the relevant law, as covered above, in a covering letter which will accompany the application.

Second, you should explain how the facts of this particular application relates to the law, with reference to evidence. You should address the relevant factors identified above: the child’s age; their social, cultural and educational links in the UK; the stage of their education; how removal would impact their development; any educational or developmental needs they have which are being met in the UK; what difficulties they would face in the proposed country of return, e.g linguistic, cultural, financial, the child’s own views.

What evidence can I provide to establish the best interests of the child?

The first step is to establish the child’s continuous residence in the UK, accounting for each year. Evidence could include: birth certificate, Red Book, medical records, letters from school confirming attendance, evidence of entry to the UK. Where the child is British, her passport.

The next step is identifying the child’s best interests. We find that an independent social worker’s report provides key expert evidence. The report might comment on: the child’s educational, emotional, medical/therapeutic and developmental needs; any vulnerabilities the child has; the parent’s capacity to meet these needs without support; the importance of any support network in the UK; the child’s ability to adapt to leaving the UK; the impact of removal on the child’s wellbeing and development.

Other sources of evidence might include: letter/statement from the child with their views; letters from school commenting on the child’s needs, social relationships, and educational development, in particular if SEN staff are involved; letters from support workers at organisations assisting the family; if Social Services are involved, reports on the best interests of the child; if the child has educational/medical/therapeutic needs, letters from relevant professionals and medical records; school reports and other evidence of the child’s life in the UK.

Forms and fees

Where an application is made under paragraph 276ADE(1)(iv) or Article 8, the correct form is form FLR(FP). The Home Office fee is currently £1,033 per applicant. The Immigration Health Surcharge is also payable at £400 a year; for a 2.5 year leave to remain application, this is £1,000 per applicant.

It is possible to apply for a fee waiver using the Appendix 1 form if the applicant is destitute, or would be rendered destitute by payment of the fee.

In some circumstances there is no requirement to make a fee paid application using a specified form, including where an individual or family has been served with a Section 120 Notice (aka One Stop Notice), or where submissions are raised as part of an asylum claim, or a fresh claim following refusal of an asylum claim.

Is legal aid available?

Matters based on Article 8 or paragraph 276ADE are not in scope for legal aid. However, applications for Exceptional Case Funding are routinely granted in such cases.

At JCWI, we regularly apply for Exceptional Case Funding in these matters, and to date all such applications have been granted. This can be particularly important where funding for an independent social worker report is required, or the family is unable to afford legal representation.