ZH (Tanzania) v Secretary of State for The Home Department: SC 1 Feb 2011

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.’


Lord Hope, Deputy President, Lady Hale, Lord Brown, Lord Mance, Lord Kerr


[2011] 1 FCR 221, [2011] 2 WLR 148, [2011] UKSC 4, UKSC 2010/0002, [2011] Fam Law 468, [2011] 2 AC 166


Bailii, Bailii Summary, SC, SC Summary


Immigration Act 1971 3(5) 3(6), United Nations Convention on the Rights of the Child 1989 12, European Convention on Human Rights 8


England and Wales


Appeal fromZH (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 . .
CitedAbdulaziz 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 . .
CitedRodrigues 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 . .
CitedBoultif 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 . .
CitedMinister 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.
CitedWan 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 . .
CitedNeulinger And Shuruk v Switzerland ECHR 6-Jul-2010
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CitedEM (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.
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CitedBeoku 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 . .
CitedEB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
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Held: The court said: ‘ The . .

Cited by:

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Lists of cited by and citing cases may be incomplete.

Immigration, Children, Human Rights

Leading Case

Updated: 07 February 2022; Ref: scu.428361