The Court of Appeal (Jackson, Lewison & Christopher Clarke LJJ) went for overkill in this case about the best interests of the child. Dismissing a Filipino family’s appeal, the court unanimously held that in the family’s appeal against a removal decision, the tribunal had been entitled to find that the need to maintain immigration control outweighed the best interests of the child despite finding that the best interests of the children concerned lay in continuing their education in the UK with both parents also remaining here. Expressing strong disagreement with the judgment, Colin Yeo thought that the court has impeached the established benchmark – i.e. ZH (Tanzania) v SSHD  UKSC 4 – because the judges eerily accorded primary importance to the immigration status of parents and put the welfare of children second.
By doing so, the court found it acceptable to punish children for something they did not do; the approach is controversial because of all the fancy talk about children’s interests being primary. Consisting of mother (EV), father (BV) and three children (KrV, BV & KaV), the family (F) from the Philippines entered the UK on the basis of EV’s status as a work permit holder with the rest as dependants. Christopher Clarke LJ said at paragraph 2 that proceedings arose against a “chequered history”.
An in-time application for indefinite leave to remain (ILR) made in February 2011 was incorrectly rejected as invalid. Renewed applications for ILR were made again in March 2011 and refused in July 2011 without a right of appeal because of the earlier alleged invalid application. An appeal was nevertheless pursued: three adjournments later the government’s representative attended without a file; in a subsequent hearing, unaware that the initial ILR application may well have been made on the right form, the First-tier Tribunal (FTT) decided that F did not have a right of appeal. The FTT noted the government’s failure to comply with directions; it ordained that a fresh and appealable decision should be made in light of the article 8 claim advanced by F. Following a decision in July 2012 to remove F and the refusal of their article 8 claim, on appeal the FTT referred the case to the SSHD for full consideration regarding article 8, children’s duty and the validity of the forms used (which the judge noted were valid). In November 2012, the SSHD responded by withdrawing the original (July 2011) decision and refusing the renewed applications and decided to remove F. The FTT dismissed F’s appeal in May 2013 and the Upper Tribunal did the same in July 2013 and the matter entered the Court of Appeal on the following ground:
When there was a finding that it was in children’s best interests that their education in the UK should not be disrupted, the need for immigration control could have been, on the present facts, a countervailing consideration sufficient to displace the best interests of the child.
In May 2013, in the FTT the judge stated that he would not consider allowing the children’s appeal without allowing the parents’ appeal. He thought that it was in the children’s best interests to remain with their parents, and that their education in the UK should not be disrupted. However, the judge also held that the interference with private lives caused by removal was proportionate to the legitimate aim of maintaining immigration control. F argued that once the tribunal had found that the children’s best interests lay in continuing their education in the UK, only the most cogent countervailing considerations could justify removal, and there were none. The point is germane as to how tribunals should approach proportionality in cases where the best interests of the child are at stake.
The Court of Appeal
Dismissing F’s appeal, Christopher Clarke LJ held at paragraph 33 that there are potential cases where it was in the child’s best interests to remain in education in the UK even though one or both parents did not remain. He noted that in F’s case, the FTT found that that it was in the children’s best interests to continue their education in the UK with both parents remaining here. His Lordship explained that the child’s best interests were to be determined by reference to the child alone without reference to the immigration history or status of either parent. But that sounds too good to be true really – so the court rigidly noted at paragraph 32 that in ZH (Tanzania), the Supreme Court was dealing with British children in a case with “very powerful other factors”. Apart from “a danger in this field of moving from looseness of terms to semantics”, Christopher Clarke LJ also observed a conflict “between treating the best interests of the child as a primary consideration which could be outweighed by others provided that no other consideration was treated as inherently more significant” and “treating the child’s best interests as a consideration which must rank higher than any other which could nevertheless be outweighed by others”.
He said at paragraph 34 that a determination regarding whether the need for immigration control outweighed children’s best interests necessitated (i) an evaluation of the relative strength of the factors prioritising their best interests to remain and (ii) considering any factors pointing the other way.
The court noted at paragraph 36 that in circumstances where it was overwhelmingly in the child’s best interests to remain, the need to maintain immigration control could well not tip the balance, but if it was in the child’s best interests to remain, but only on balance, the opposite result was possible. Equally, at paragraph 35, Christopher Clarke LJ imparted guidance that a decision regarding children’s best interests turned on:
- length of residence
- length of schooling
- stage of education
- extent to which they have become distanced from the country of their proposed return
- degree of renewability of their connection to that country
- extent of linguistic, medical or other difficulties in adapting to life the country of proposed return and
- extent to which removal will interfere with their family life or their rights (if they have any) as British citizens.
Although the above factors are important in determining whether it is in the best interest of children to remain and positive answers to these factors result in greater weight falling on one side of the scales, it was also critical to give “strong weight to the need to maintain immigration control, and to the fact that the applicants had no entitlement to remain”. Moreover, at paragraph 38, citing MK India (Best interests of the child)  UKUT 00475 (IAC) with approval, Christopher Clarke LJ explained that parents’ immigration history, whether they have acted deceitfully or are overstayers, may also be relevant. Applying ZH (Tanzania), the court held at paragraph 41 that “[t]hese cases were inevitably fact-specific.”
The court observed that the FTT had treated the children’s best interests as a primary consideration and concluded that their best interests lay in remaining with their parents and continuing their education in the UK. In deciding whether the need to maintain immigration control outweighed children’s best interests, the FTT took into account that EV (MSc in Nursing) and BV would be employable upon return to the Philippines, they would not be homeless, an extended family awaited them, they had been in the UK for short period of time and the children would be provided education upon return (the quality and cost, in comparison to free UK secondary education, were not determinative).
Equally, Christopher Clarke LJ held at paragraph 44 that there was no question of any interference with family life, and F could have had no assurance of a guaranteed permanent settlement in the UK. Ultimately, the court held at paragraph 45 that the tribunal had analysed the weight to be given to the need for immigration control because it has set out and examined the requisite factors: his Lordship explained that the FTT had correctly concluded in the instant case that the need to maintain immigration control did outweigh the children’s best interests and it was not unreasonable to expect them to live in another country.
Christopher Clarke LJ also pointed out that because they had not been treated as overstayers, and so they suffered no prejudice, F could not complain that the SSHD considered the application of March 2011 and not that of February 2011.
Lewison LJ delivered a concurring judgment. Making some points of his own, his Lordship clarified at paragraph 58 that:
The ultimate question was whether it was reasonable to expect the child to follow a parent who had no right to remain.
The court concluded that the particular facts of ZH (Tanzania) made it unreasonable to expect the children to follow their mother to Tanzania because that would involve separating the family and depriving British children of the right to grow up in the UK. In contrast to ZH (Tanzania), the instant case did not fit that description because none of appellants were British and none had the right to remain in the UK making it entirely reasonable to expect the children to leave with their parents if the latter were removed. In a clear demonstration of his political views, Lewison LJ mercilessly explained at paragraph 60:
Although it is, of course a question of fact for the tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world.
Despite the Court of Appeal’s emphasis that the child’s best interests were to be determined by reference to the child alone without reference to the immigration history or status of either parent, it is pretty sad that court’s decision turned out to minimalist version of ZH (Tanzania). A couple of years ago, I heard Lady Hale DPSC speak in the Law Society’s common room. Her Ladyship was extremely clear that she was an expansionist of human rights law and I think that everyone would agree with Colin Yeo that:
It feels like judges are trying their hardest to construct a way of disapplying the UN Convention on the Rights of the Child and the Supreme Court’s judgment in ZH (Tanzania).
But despite its negativity, the judgment nonetheless offers a glimmer of hope to children who can pass the test that Christopher Clarke LJ neatly trots out in paragraph 33 of the Court of Appeal’s judgment. One issue with his Lordship’s endorsement of MK India – where a child with seven years residence was expelled – is that the “new rules” expressly provide for persons under eighteen who have resided in the UK for seven years prior to the date of their application to be granted leave to remain purely on that basis. Apart from putting foreign children at the periphery of immigration decision-making, another harsh aspect of the Court of Appeal’s judgment is that it also punished a professional foreign woman who entered the UK as an earnest worker – someone who was exploited and cheated by her UK employers – with the expectation of settling here.
Unlike the children in the instant case who had only been in the UK for three years and nine months, quite a few children, without leave to remain in the UK, aged seven or above are studying here. Lewison LJ’s strident conclusion – “we cannot educate the world” – is totally incompatible with the very positive feedback teachers unreservedly give regarding some of their undocumented students. Teachers only give favourable references when compelling reasons exist and not every foreign student child will get a positive report from school. It is therefore somewhat weird that Lewison LJ purports to embrace the role of teacher over and above his duties as a high profile judge. Equally, given that EV worked in the medical professional, the court’s comments about not providing medical treatment for the world are shabbily timed because the NHS, one of the world’s largest employers, is driven by immigrants as the native British people lack skills in this area.
Intriguingly, despite the sting in the judgment, a couple of our clients, a clever British born seven year old (namesake of counsel who represented pro bono in EV) who reads and writes English and maths like a ten year old, and her equally intelligent older brother may even benefit from Court of Appeal’s approach. Thus far these children have been bullied by the Home Office which is keen to enforce their return to India: their case has never received any judicial scrutiny because in the past the SSHD has requested that judicial review proceedings be withdrawn. But these days, the unfortunate trend in the Home Office is to follow up with a fresh refusal.
Anyway, it is unlikely that the duty regarding children’s welfare will die quietly. By the way, if you’re wondering that is David Cameron in a Chinese primary school during his December 2013 visit when he proclaimed that British school children should learn Mandarin rather than concentrating on French or German. But the real question for the Prime Minister is whether, in the present legal environment, skilled people from overseas would even be able to come to the UK to teach Mandarin or another foreign tongue?