Case Comment: ZH (Tanzania) v SSHD [2011] UKSC 4

While one Brenda (in Yarl’s Wood) awaits deportation from the UK to a certain death in Uganda, another Brenda in the Supreme Court of the United Kingdom (Baroness Hale of Richmond of course) has made some particularly telling observations regarding the status of children in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

The case exhibits that a mother with an atrocious immigration history should be allowed to stay in the UK on grounds which arise because of her child’s British citizenship (who could not be subjected to a deportation order).

The reason behind this rationale was that if the mother was deported the child would have had to leave the UK with her mother  (who was the primary carer owing to the father’s terminally illness and lack of interest) as the child would find it impossible to stay in the UK on their own.

The Court found that to banish British children to another country because of the perverse immigration history of a parent is incompatible with the UK’s obligations under Article 3.1 of the United Nations Convention on the Rights of the Child. In the first instance these were routed into UK law through section 11 of the Children’s Act 1989. For the purposes of immigration control the Convention creates a duty for the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009. The UKSC took the opportunity to harmonise existing western common law jurisprudence in ZH (Tanzania) and, as in the case of HJ (Iran), the Australian jurisdiction featured quite significantly in the Baroness Hale’s speech.

This appeal was unanimously allowed by the Supreme Court which required that while making the proportionality assessment under article 8 of the ECHR, children’s interests must remain paramount and must be a primary consideration. A child’s “best interests” were connected to the well-being and welfare of the child. In considering these interests and whether it was reasonable to expect the child to live in another country, it was imperative to ascertain the child’s own views.

In the context of the appeal, at paragraph 13, Lady Hale summed up the SSHD’s position as:

The Secretary of State now concedes that it would be disproportionate to remove the mother in the particular facts of this case. But she is understandably concerned about the general principles which the Border Agency and appellate authorities should apply.

Like HJ (Iran) the judgment contains a lot of comparative jurisprudence and judgments from Australia are relied upon. In that jurisdiction it was established that the principles of Article 3.1 of the UN Convention should be the overarching legal principle where children were concerned. For example at paragraph 26 Baroness Hale sets out that:

Nevertheless, even in those decisions, the best interests of the child must be a primary consideration. As Mason CJ and Deane J put it in the case ofMinister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, (1995) 183 CLR 273, 292 in the High Court of Australia:

“A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.”

As the Federal Court of Australia further explained in Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568, para 32,

[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.

Lady Hale also stipulated at paragraph 37 that:

But the immigration 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. As the Committee on the Rights of the Child said, in General Comment No 12 (2009) on the Right of the Child to be Heard, at para 36:

“in many cases . . . there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision-maker by the representative.”

Children can sometimes surprise one.

At paragraph 46 Lord Kerr agreed with Baroness Hale and stated that:

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 interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.

It should be noted that ZH had a really perverse immigration history. Yet the UKSC considered that the UN Convention imposed a binding obligation upon the British authorities to give precedence to children’s rights in decisions connected to their welfare. Imperatively, the UKSC decided not to impose punishments upon children for the wrongdoings of their parents. Surely one must agree with this rationale.

There is a lot of disagreement in London’s legal circles about whether the instant case could be considered a “trump” card. Some say yes and others say no. Only time will tell.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Children, Citizenship and Nationality, Removals, s 55 BCIA, Tanzania, UKSC and tagged , , , . Bookmark the permalink.

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