The Court of Appeal has finally grappled with the question of how to apply the best interests of children in an immigration context and given detailed guidance on how judges should approach the exercise. The judgment, in the case of EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874, is essential reading for anyone acting in or deciding immigration appeals involving children. To put it another way, in our age of anonymised initials ‘EV’ is one of the relatively rare combinations it is worth learning and remembering.

Facts

The family who were the subject of the case consisted of a mother, father and three children. All were nationals of the Philippines born in the Philippines. The mother had been resident in the UK lawfully as a work permit holder from June 2007 and she was joined by the rest of the family in April 2008. An extension application made in 2011 was refused on the mistaken basis that the application was invalid, which caused the matter to drag on for some time. When it was finally considered properly, a judge found that the family could not meet the terms of the rules because the main applicant’s employers had wrongfully failed to employ her at the relevant rate and she had been “defrauded by the care home owner by being underpaid”. In the meantime, the family had uncomplainingly tried to settle down in the UK and the children were at school.

Held

You can perhaps guess what happens next. Rather than the care home owner being held to account for exploitation of vulnerable migrant labour, the migrant labourer, who relocated her whole family to the UK in good faith and was defrauded, is punished through expulsion. Out of sight, out of mind:

In our case none of the family is a British citizen. None has the right to remain in this country. If the mother is removed, the father has no independent right to remain. If the parents are removed, then it is entirely reasonable to expect the children to go with them. As the immigration judge found it is obviously in their best interests to remain with their parents. Although it is, of course a question of fact for the tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world.

In the course of giving judgment, the Court of Appeal gives its clearest guidance yet on how to interpret and apply the best interests of children in an immigration context, which is worth quoting at length:

32. There is a danger in this field of moving from looseness of terms to semantics. At the same time there could be said to be a tension between (a) treating the best interests of the child as a primary consideration which could be outweighed by others provided that no other consideration was treated as inherently more significant; and (b) treating the child’s best interests as a consideration which must rank higher than any other which could nevertheless be outweighed by others. It is material, however, to note that Lord Kerr, as he made clear, was dealing with a case of children who were British citizens and where there were very powerful other factors – see [41] below -in favour of not removing them (“the best interests of the child clearly favour a certain course”/ “the outcome of cases such as the present”). He also agreed with the judgment of Lady Hale. In those circumstance we should, in my judgment, be guided by the formulation which she adopted.

33. More important for present purposes is to know how the tribunal should approach the proportionality exercise if it has determined that the best interests of the child or children are that they should continue with their education in England. Whether or not it is in the interests of a child to continue his or her education in England may depend on what assumptions one makes as to what happens to the parents. There can be cases where it is in the child’s best interests to remain in education in the UK, even though one or both parents did not remain here. In the present case, however, I take the FTT’s finding to be that it was in the best interests of the children to continue their education in England with both parents living here. That assumes that both parents are here. But the best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent.

34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.

35. 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.

36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.

37. In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully.

The judgment is also notable for confining the argument to the issues on which permission was granted.

Comment

The judgment can be criticised for putting the cart before the horse. Rather than addressing the best interests of the child first as a primary consideration and then weighing other considerations against that to determine the fate of the children, the Court first starts by addressing the immigration status of the parents. This perhaps most evident at paragraph 60, where it is assumed that the children will accompany the parents and only then the court considers whether the best interests of the child outweigh other preordained and predetermined considerations. It is, shall we say, the Calvinist rather than the Arminian view.

The judgment broadly approves the tribunal’s earlier determination in MK India (Best interests of the child) [2011] UKUT 00475 (IAC) (FM write up here). It might be noted that in MK a child of over seven years residence was expelled, arguably against the tribunal’s own guidance, whereas in EV (Philippines) the period of residence was only three years. The result in EV (Philippines) is therefore perhaps unsurprising, even if the reasoning to attain the apparently vital goal of expulsion seems rather contrived.

It feels like judges are trying their hardest to construct a way of disapplying the UN Convention on the RIghts of the Child and the Supreme Court’s judgment in ZH (Tanzania). “We cannot educate the world”, says Lord Justice Lewison imploringly. The logic is convoluted, though, and there is no getting away from the fact that the best interests of the child are supposed to be the starting point against which other considerations are weighed, not the other way around.

Further criticism can be made of the obsession with short term public finances. There is considerable research — and pretty much unanimity amongst economists — to indicate that over the course of their lives migrants pay in considerably more to the public purse than they take out. Politicians and judges might usefully recall Rowntree’s groundbreaking work on the poverty cycle and draw a parallel. Yes, a child may need support at some public expense in childhood, but this is a collective investment in our future which will reap dividends when the child is older. This kind of financial analysis is rather clinical and its place in a judgment that should be concerned with best interests of children as a primary consideration is questionable, but judges should be aware that they are making all kinds of political assumptions and value judgments when remarking on cost to the public purse in this way. The Government’s view of the public interest is too influenced by short term political problems and elections to be faultless, and judges are supposed to make their own independent assessment.

Shivani Jegarajah and Bronwen Jones of Mansfield Chambers were Counsel for EV pro bono instructed by MTA Corporate Solicitors LLP and Susan Chan was Counsel for the Secretary of State instructed by Treasury Solicitors.