UTIAC i) The best interests of the child is a broad notion and its assessment requires the taking into account and weighing up of diverse factors, although in the immigration context the most important of these have been identified by the Supreme Court in ZH (Tanzania) [2011] UKSC 4, the Court of Appeal in AJ (India) [2011] EWCA Civ 1191 and by the Upper Tribunal in E-A (Article 8 -best interests of child) Nigeria [2011] UKUT 00315 (IAC).
ii) Whilst an important part of ascertaining what are the best interests of the child is to seek to discover the child’s own wishes and views (these being given due weight in accordance with the age and maturity of the child) the notion is not a purely subjective one and requires an objective assessment.
iii) Whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), ZH (Tanzania) makes clear that it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration.
iv) What is required by consideration of the best interests of the child is an ‘overall assessment’ and it follows that its nature and outcome must be reflected in the wider Article 8(2) proportionality assessment. Consideration of the best interests of the child cannot be reduced to a mere yes or no answer to the question of whether removal of the child and/or relevant parent is or is not in the child’s best interests. Factors pointing for and against the best interests of the child being to stay or go must not be overlooked.
v) It is important when considering a child’s education to have regard not just to the evidence relating to any short-term disruption of current schooling that will be caused by any removal but also to that relating to the impact on a child’s educational development, progress and opportunities in the broader sense.
Judges:
Storey, Kebede UTJJ
Citations:
[2011] UKUT 475 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 29 September 2022; Ref: scu.449424