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Rights of children a primary consideration


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Yet more good news, this time for children and their parents. In LD (Article 8 best interests of child) Zimbabwe [2010] UKUT 278 (IAC) the President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the UN Convention on the Rights of the Child is highly relevant to Article 8 ECHR. See paragraphs 27 and 28:

27. The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives.  PreviouslyHome Office policy tended to identify seven years of residence of a child as one that would presumptively require regularisation of immigration status of child and parents in the absence of compelling countervailing factors. That was really an administrative way of giving effect to the principle of the welfare of the child as a primary consideration in such cases and when it was considered that those interests normally required regularisation of the immigration position of the family as a whole. The policy may have been withdrawn but substantial residence as a child is a strong indication the judicial assessment of what the best interests of the child requires.  The UN Convention on the Rights of the Child 1989 Art 3 makes such interests a primary consideration.

28.   Although questions exist about the status of the UN Convention on the Rights of the Child in domestic law, we take the view that there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases.  A failure to treat them as such will violate Article 8(2) as incorporated directly into domestic law. [emphasis added]

The tribunal is also highly critical of the blase sounding approach of the (unidentified) Immigration Judge:

We therefore turn to consider the Immigration Judge’s reasoning on the question of proportionality. We confess we find it is wholly absent.  This is not a case about physical or mental illness of anybody, but whether the family life that had been enjoyed over eleven years with authority afforded to each member of the family should now be interfered with.  The Immigration Judge has wholly failed to grapple with this. We find his reference to maintain contact with his family ‘in the normal manner’ is extraordinary. Families normally live together. Family life consists of the inter-dependent bonds between spouses or stable partners and between parents and children with particular strength being placed upon the interests and welfare of minor children. It is not normal for family life to be enjoyed by correspondence and occasional visits (even assuming that there were no obstacles to such visits following this immigration decision). Although the Immigration Judge has cited the case as Beoku-Betts he appears singularly to have misunderstood the core principles to be applied in this area of the law, as exemplified by the other important House of Lords cases HuangEB (Kosovo) and numerous decisions in the Court of Appeal noted above as well as the decision in Chikwamba [2008] UKHL 40.

Not only that, but El Presidente underlines the importance of AA (Nigeria), re-emphasises that reasons do have to be put forward by UKBA for interference with a private and family life, and makes it clear that the weight to be attached to the consistent application of immigration control “depends on the context of the case, whether there was ever any claim under the rules for indefinite leave to remain, and why such claim was not accepted.”

More to follow on the rest of the sudden rush of cases.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


5 Responses

  1. I’ve had a number of cases where reps have argued that our 2008 full and unreserved adoption of the Convention on the Rights of the Child, coupled with S.55 of the BCI Act 2009, mean that any atempt to remove a family with children, or to seperate a child from other relatives, is necessarily unlawful. They say that ‘the best interests of the child’ will always be found in letting the whole family stay in the UK together.

    While most IJs have little trouble in rejecting those submissions as too simplistic, it is a fact that is generally quite difficult to get an IJ to find a decision to remove proportionate, when school-going children are involved, unless there is some serious immigration or criminal offending going on to outweigh the rights of the child.

    As for the withdrawal of DP5/96, I think most IJ’s still take it as a clear rule of thumb and see it as pretty much irrefutable that if a child has been here 7 years, the decision to remove is disproportionate, and the family are going nowhere.

    1. Provincial PO – Re your last paragraph.

      Presumably as an HOPO you see these cases at an appeal stage quite often.

      While your point is well made, there is a vast chasm between an available application to regularise, and acheiving an appeal against eg. a s.10 removal, in front of an IJ.

      One of the advantages of DP5/96 is it kept so many cases out of the appeal courts, which you well know are very busy. It also distorts the overall appeals success rate figures of the courts.

    2. I’ve come across quite a few IJs who seem to have very little regard (albeit more than the Home Office) to the effect of decisions upon children. As someone who practices in children proceedings as well as immigration, it really does get my goat that part of the Government has so little regard for the role of parents, while the rest purports to consider it important.

  2. Having read the article it seemed to me that DP5/96 is going to have be re-enacted in some manner. Clearly Mr Woolas hadn’t thought it through properly.
    Then I read Provincial PO’s comment. His sentiments imply the call for its return are even shared by some at the HO.
    Given the anti-detention of children sentiments at the political level, another piece of crass Labour decision making should eventually be reversed, but I’m not holding my breath for it.