In a judgment handed down yesterday HH Judge Anthony Thornton QC has given some very interesting guidance on the scope of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 following the guidance of the Supreme Court in the landmark case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. The case is R (on the application of Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin).

The facts are not that unusual. An Ecuadorian woman entered the UK illegally in 2001 with her mother. She was pregnant at that time and gave birth in 2002. The child grew up and attended school in the UK and had never had any contact with her father or with Ecuador generally. All three made a joint application under Article 8 ECHR. The application was refused on several grounds on several occasions. The reasons included:

• That the child could adapt easily to life and schooling in Ecuador, even though she did not read or write Spanish and had been attending school in the UK for over three years
• The child had taken a school place that might otherwise have been given to a lawfully settled child
• There was alleged to be a possibility that the child could re-establish contact with her father if returned to Ecuador

I think it would be fair to say that the decisions in question where not the finest hour for the UK Border Agency. Nevertheless, UKBA decided to contest the case and pushed it to a hearing. I doubt that UKBA will be terribly happy about the outcome.

The judge carefully examines section 55 and the judgment in ZH (Tanzania) and gives sensible, useful guidance on similar cases:

(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.

The most interesting passage of the judgment for practitioners probably comes at paragraphs 24 and 25, where the judge comments on the evidence that UKBA were under a duty to ensure they had regard to in order properly to discharge the section 55 duty.

24. 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.

25. In this case, the decision maker needed to have detailed information about Angeles’s life in England over the entire 9 years of her life including detailed information of where she had lived and was now living, her relationship with her mother and grandmother, her entire educational history, her social network and her aptitudes and future predictions for her further all-round development if she remained in England for the remainder of her childhood. This information needed to be compared with what her life would be like if she moved to Ecuador. That would require detailed information from Zaira and Vicenta as to how they had lived and maintained themselves in England and as to their and Angeles’s life-style, including where and how they would live and maintain themselves, if they returned to Ecuador. Detailed information about the relevant schools and school system that Angeles would attend in Ecuador would also be needed. All this information was required to enable a balance view to be formed as to what was in her best interests. The decision- maker also needed to ascertain, or be properly informed about Angeles’s own views, and it is difficult to see how her views could be objectively and fairly obtained without someone other than Zaira speaking to her and exploring with her in depth her feelings, attitudes and preferences. If those views were to be obtained by a third party source rather than the decision-maker, it is difficult to see how, in this case, the decision-maker could proceed without first commissioning, or seeking from Zaira, an appropriate assessment or report from that third party source. Finally, more detailed and up to date reports from Angeles’s school, church and any social group that she participated in would seem to be necessary.

Even many immigration lawyers may find the breadth and depth of this list of evidence shocking. The judgment must be right, though. The list of evidence is what would be needed to make an informed decision on a child’s case. The proactive duty on the UK Border Agency is imposed by ZH and by the UN Convention on the Rights of the Child. Section 55 is not empty, it imposes a profound new duty on the UK Border Agency that must be adhered to.

This case, Tinizaray, also has profound implications for the conduct of immigration tribunal cases in which reliance is placed on Article 8 by a child. It is arguable that where the ‘decision maker’ is an immigration judge, that judge must be provided with the necessary evidence and, just as bound by the UNCRC as is UKBA, must take steps to procure such evidence.