Public Law Solicitors

The failure to consider the best interests renders a decision unlawful and challenges by way of public law need to address the breach of the SSHD’s statutory duty under Section 55.

In a High Court challenge involving an Article 8 claim, the issue of remitting the client’s Application back to the SSHD to reconsider the best interests of a child affected by an immigration decision, was deemed the appropriate action to take. Having submitted an Article 8 application, after the withdrawal of DP5/96, the SSHD considered the client’s application on a discretionary basis but was not persuaded that the client’s circumstances justified exceptional treatment. As a starting point, the client’s claim was advanced on the basis of her residence in the UK since 1998 and the client’s daughter joined her mother in the UK, two years later at the age of 8 years. She was aged 19 years at the date of the determination of her claim by the UKBA. Our client has two other daughters born in the UK and they were aged 1 and 3 years but with their father having been granted settlement in the UK in 2010, they were granted citizenship in the UK.
However, the SSHD refused the Article 8 claim citing that they did not treat the client’s Article 8 claim as being sufficiently compelling. With no right of appeal, a challenge by way of judicial review proceedings was lodged to question whether the SSHD’s decision was compliant with section 55. No mention was even made in the refusal letter dated 10th May 2011, of section 55 thus leaving the SSHD open to the challenge that no regard had been had by the SSHD to the need to safeguard and promote the welfare of the client and the SSHD was therefore in breach of her statutory duties, notwithstanding the reference made by the SSHD to caselaw including ZH (Tanzania), in the refusal letter.
Having lodged JR proceedings citing, inter alia, the SSHD’s failure to provide inadequate reasoning for the decision to refuse the application and their failure to comply with their own policy, the SSHD conceded by way of consent, to reconsider the application in accordance with that policy and the client and her daughter were granted discretionary leave to remain in the UK but challenges/representations advancing case law including ZH (Tanzania), need to specifically cite section 55. The SSHD does, in addition to case law, need to be reminded separately of the duty placed on the immigration authorities, as a result of section 55 BCI 2009, to make arrangements for ensuring their functions with regard to the need to safeguard and promote the welfare of children, is discharged. This duty applies, not only to how children are looked after in this Country while decisions about immigration, asylum and deportation or removal are being made, but also to the decisions themselves. Therefore, 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 particularly for the purposes of Article (8).
This continues to be an interesting and ever developing area of law, there will be other articles on this in the near future.

By Neelam Banger