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The Best Interests of Children in light of ZH (Tanzania) (21 March 2011)

By Alexander Cooray

In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) the Supreme Court turned its mind to whether (and when) it would be permissible to remove a non-citizen parent of a British child from the UK; and also, more broadly, the weight to be given to the best interests of children who are affected by a decision to remove one or both of their parents from the UK.

These questions arose in the context of an appellant who was a national of Tanzania who had been in the UK since December 1995. Her immigration history was described as appalling: she had made three unsuccessful claims for asylum, one in her own identity and two in false identities. However, in 1997 she had also met and formed a relationship with a British citizen, and borne two children, now 9 and 12. They were both British citizens through their father. They lived with the appellant, she having separated from their father in 2005; he had regular contact but also had a drinking problem, was HIV positive, and reliant on benefits including DLA.

The leading judgment is by Lady Hale; Lords Brown and Mance agreed; Lords Hope and Kerr gave concurring judgments.

The weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK

The leading judgment of Lady Hale refers to and analyses various bases for giving primacy to the best interests of children.

The European Court’s judgment in Üner makes explicit that decision makers must consider ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled’ [paragraph 17].

Although the European Court has repeatedly said that only in exceptional circumstances would removal be likely to violate Article 8, they considered that the circumstances in Rodrigues de Silva v the Netherlands were thus exceptional. The claimant had a Dutch national daughter from a former partner; but she had spent years unlawfully in the Netherlands without attempting to regularise her status [paragraph 19]. (Rodrigues de Silva was of course a precursor to Beoku-Betts on the issue of the weight to be attached to the rights of third parties.)

On the facts in ZH, the Supreme Court considered that – quite apart from their nationality – removal would breach the children’s Article 8 rights. At paragraph 31 of the judgment:

‘[The children] have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate in their own community… But it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well.’

This is an interesting riposte to the Secretary of State’s general stance that children can adapt to life in another country, and that therefore interference with their Article 8 rights would not be disproportionate.

However, Lady Hale carefully noted that the best interests of the child were not themselves automatically dispositive of a case. At paragraph 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. They can, of course, be outweighed by the cumulative effect of other considerations.’

In this case, despite having described the mother’s immigration history as ‘appalling’ the Supreme Court concluded that removal would be a disproportionate interference with Article 8.

Whether (and when) it would be permissible to remove a non-citizen parent who has a British child who would also have to leave the UK

The leading judgment of Lady Hale states at paragraph 1:

• There is no power to remove or deport a person who is a United Kingdom citizen (Immigration Act 1971, section 3(5) and (6)).
• They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance (1971 Act, sections 1 and 2).
• The Secretary of State has consistently said that UK citizens are not compulsorily removed from this country (eg Phil Woolas, Hansard, Written Answers, 15 June 2009).
• ‘However if a non-citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views.’

The judgment also makes clear that citizenship has intrinsic importance, in addition to any other Article 8 rights that may have accrued. At paragraph 32:

‘Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults.’

However – as with the broader issue of the best interests of the child – Lady Hale stressed that nationality of a child is not a ‘trump card’ (at paragraph 30); while it must weigh in the parent’s favour, it can be outweighed by other considerations.

Consulting the children

Lady Hale also considered that the wishes of any children should be ascertained whenever possible. At paragraph 37:

‘[I]mmigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents' this should not be taken for granted in every case.’

Paramountcy

While there is no dispute that the best interests of the child must be a primary consideration, the Secretary of State’s position is that they are not the primary consideration – consistent with the Supreme Court’s having said that they are not a trump card.

Nevertheless, the tenor of the judgment appears to be that the weight to be apportioned to the rights of children does not fall far short of paramountcy. In particular the concurring judgment of Lord Kerr states, at paragraph 46 of the judgment:

‘It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interes