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Family Law

The leading authority on all aspects of family law

03 FEB 2011

Supreme Court rules in favour of 'child's best interest' in immigration cases

Supreme CourtThe Supreme Court has ruled that the "best interests of the child" need to be put at the centre of any immigration decision to remove non-citizen parents.

The judgement puts the UN Convention on the Rights of the Child (UNCRC), in particular the requirement on State Parties to treat children's best interests as a primary consideration in their decision making, at the very heart of decisions that are taken in family removal and deportation cases. 

The Supreme Court considered in detail the weight to be given to the "best interests of the child" where they are affected by a decision to remove or deport one or both parents. In the lead judgement, Baroness Hale noted that "There is no machinery for consulting [children] or giving independent consideration to their views". She argued that the first consideration must be the child's best interests and only then should other factors be balanced against this.

The case concerned a mother's appeal to the Supreme Court on the ground that her removal from the United Kingdom to Tanzania would constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by article 8 of the European Convention on Human Rights. 

At issue was 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. This raised the broader issue as to what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave.

The Court of Appeal upheld the tribunal's finding that the children could reasonably be expected to follow their mother to Tanzania.

The position of the Secretary of State has been UK citizens are not compulsorily removed from this country. 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.

The Justices held that although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child. As citizens by descent from a British parent, the court held that the children have rights which they will not be able to exercise if they move to another country.

Maggie Atkinson, Children's Commissioner for England, welcomed the ruling: "We have long campaigned for children who are caught up in the immigration and asylum system to be heard and for them to be treated in accordance with their UNCRC rights. The Supreme Court ruling builds on the Government's decision to remove its reservation to Article 22 of the UNCRC, to establish a duty on the UK Border Agency to safeguard children and promote their welfare and to end the detention of children for immigration purposes.

"The Supreme Court is emphatic that where children are affected by legal proceedings, their views must be heard. We sincerely hope that the Ministry of Justice, the UK Border Agency and the Immigration Tribunals will thoroughly consider their respective arrangements to ensure that they are able to comply with the letter and spirit of this important judgement."

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