The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return with her.
Held: The mother’s appeal succeeded. The court had to consider the best interests of the children involved. The children were not merely British by any accident. Their nationality was real. Their right to live here was unqualified, they had lived all their lives here and had no social links with any other community. It was insufficient to say that they might adapt to a new society. Although nationality is not a ‘trump card’ it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality. In considering the proportionality of the removal, the best interests of the children involved were primary. Nevertheless, their interest as a primary consideration does not mean that it cannot be outweighed by other factors in the balance so that interference with their Article 8 rights is proportionate.
In any case involving a child it was important to discover the child’s own views.
Lord Kerr of Tonaghmore said: ‘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 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.’
Judges:
Lord Hope, Deputy President, Lady Hale, Lord Brown, Lord Mance, Lord Kerr
Citations:
[2011] 1 FCR 221, [2011] 2 WLR 148, [2011] UKSC 4, UKSC 2010/0002, [2011] Fam Law 468, [2011] 2 AC 166
Links:
Bailii, Bailii Summary, SC, SC Summary
Statutes:
Immigration Act 1971 3(5) 3(6), United Nations Convention on the Rights of the Child 1989 12, European Convention on Human Rights 8
Jurisdiction:
England and Wales
Citing:
Appeal from – ZH (Tanzania) v Secretary of State for The Home Department CA 2009
The respondent sought an order returning the applicant to Tanzania, but she had children with British nationality, and the consequences of the order would be inevitably that they would have to go with her.
Held: The court criticised the . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh 7-Apr-1995
Austlii (High Court of Australia) International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.
Cited – Wan v Minister for Immigration and Multi-cultural Affairs 18-May-2001
(Federal Court of Australia) The law required the Tribunal, in determining whether to confirm the refusal to grant a visa to Mr Wan, to treat the best interests of any child affected by its decision as a primary consideration: ‘[The Tribunal] was . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – Edore v The Secretary of State for the Home Department CA 23-May-2003
The applicant challenged the decision of the Immigration Appeal Tribunal which had reversed a decision of an adjudicator and restored the Secretary of state’s decision to deport her.
Held: The adjudicator’s decision was acknowledged to be . .
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited by:
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Broxbourne Borough Council v Robb and Others QBD 27-Jun-2011
The Council applied for the committal of the defendant for an alleged breach of a without notice injunction. Notice of the injunction had been placed at the site, requiring nobody to move caravans onto the land.
Held: The application . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – E-A (Article 8 – Best Interests of Child) Nigeria UTIAC 22-Jul-2011
UTIAC (i) The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – AAA v Associated Newspapers Ltd CA 20-May-2013
An order had been sought for the claimant child for damages after publication by the defendant of details of her identity and that of her politician father. She now appealed against refusal of her claim for damages for publication of private . .
Cited – A, Regina (on The Application of) v Lowestoft Magistrates’ Court Admn 26-Mar-2013
A had pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A’s daughter, to whom I shall refer as B. B . .
Cited – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
Cited – AA v Entry Clearance Officer (Addis Ababa) SC 18-Dec-2013
The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Makhlouf v Secretary of State for The Home Department SC 16-Nov-2016
(Northern Ireland) The appellant (born in Tunisia) was made subject to a deportation order. He had married a UK citizen and they had a child. After moving to the UK, at various times, the relationship broke down and he was convicted of several . .
Cited – Her Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Cited – Re Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.
Immigration, Children, Human Rights
Leading Case
Updated: 07 February 2022; Ref: scu.428361
