The Welfare of Children must be ‘Primary Consideration’ in Decisions Regarding Immigration Detention of Parents

MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010)

The England and Wales High Court has held that the immigration detention of a Jamaican woman with dependant children breached arts 5 and 8 of the European Convention of Human Rights on the basis that her detention affected the welfare of her children.  It was further held that the decision makers’ failure to apply a relevant policy when exercising their discretion to continue the claimant’s detention, also rendered her detention unlawful.


‘MXL’ (the principle claimant) was a Jamaican national who, in 2003, had been granted leave to remain in the United Kingdom as a spouse of a British citizen . MXL and her spouse have two UK born children who were aged six and two at the time of the events leading up to the proceedings before the High Court.  In February 2002, shortly after arriving in the UK, MXL received a conviction for shoplifting.  In the following six years she was convicted of theft on 6 separate occasions, totalling 19 offences, and in February 2009 she received a 24 month sentence for conspiracy to steal.

MXL was due to be released on 16 April 2009; however, on 9 March 2009 she was served with a notice indicating that the Secretary of State for the Home Department was considering her deportation.  On 6 April 2009, MXL was informed by letter that a decision had been made that she should be detained because it was considered likely that she would abscond and there was a risk that she would re-offend.

On 4 June 2009 MXL was served with a deportation order, and an authority for her continued detention was issued on 11 June 2009.  MXL unsuccessfully appealed against the 11 June deportation decision, but on 23 October 2009 Burnett J granted an order for reconsideration of the deportation appeal (that appeal had yet to be heard and did not form the subject matter of the proceedings before the High Court).

MXL remained in immigration detention until 21 December 2009, when she was granted bail after issuing the proceedings before the High Court.  By that time she had previously been refused bail by immigration judges on at least two occasions.  During her time in detention, her two young children were in foster care.

The question before the Court was whether MXL’s immigration detention between 16 April 2009 and 21 December 2009, pending the outcome of her appeal against the deportation order, was unlawful in the circumstances, giving rise to a liability for damages. MXL’s challenge was based on four grounds, the fourth of which was that:

The decision to detain was irrational and also in breach of Article 5 and Article 8 of the ECHR as it failed to take account properly or at all the welfare of the children as a primary consideration, or accord the factors in favour of release the decisive weight they required.


MXL was successful on the fourth ground (quoted above) relating to arts 5 and 8 of the European Convention.

Article 5 provides that ‘No one shall be deprived of his liberty save [in the following cases and] in accordance with a procedure prescribed by law’ (emphasis added).

Article 8 provides that ‘There shall be no interference by a public authority with the exercise of [the right to respect for private and family life] except such as is in accordance with the law…’ (emphasis added).

In relation to the alleged art 5 breach, the Court defined the relevant question to be ‘whether a decision to detain where there is a power in law to detain is nevertheless arbitrary and not in accordance with the law because it is taken without regard to or contrary to the terms of a relevant policy promulgated by the decision taker for application within the jurisdiction’.

The Court relied on authority of the European Court of Human Rights in holding that, policies which inform how a decision maker’s discretion can be exercised, can form part of the relevant ‘law’ for the purpose of arts 5 and 8 of the European Convention.  This meant that, in order for the decision regarding MXL’s continued detention to conform with art 5, the relevant decision maker was required to comply with the policies relevant to determining whether an individual should be detained.

The Court went on to state that normally, art 8 would ‘add little to Article 5 in terms of the justification of detention’.  However, the Court took the view that ‘where children of tender years dependent on their mother are concerned, the impact of detention on them is a consideration best examined within the context of Article 8’.  The EWHC found that art 8 was engaged in MXL’s circumstances as her continued detention affected the interests of her children.  This meant that ‘the detention of the mother must be compatible with Article 8 in order to be in accordance with the law and proportionate under Article 5’.

Operation of Article 8

Once art 8 is engaged, the Court stated that:

the exercise of judgement in a case falling within its ambit must comply with the principles identified by [the Strasbourg Court].  In a case where the interests of children are affected this means that other principles of international law binding on contracting states should be complied with.  In the case of children those principles are reflected in Article 3(1) of the UN Convention on the Rights of the Child 1989 to which the UK is now a party without any derogation in respect to immigration decision making.  As the Committee on the Rights of the Child explain in its General Comment of 2003 “Article 3(1): the best interests of the child as a primary consideration in all actions concerning children”.

Interests of the Child

The Court referred to an earlier assessment by the Children’s Champion, which had strongly suggested that it was in the best interests of the children for MXL to be released pending deportation, as this would allow a relationship between mother and children to be maintained, which in turn would make it easier for the children to be removed to Jamaica with MXL should she be deported.

In discussing the second basis for the challenge (which ultimately failed), the Court stated that:

…there is no indication in the file notes during this period that [the UK Borders Agency] had taken a position on the dilemma identified by the Children's Champion.  If it was intended that the claimant should be deported to Jamaica and take her children with her then she should have been released to care for her children before removal.  This would restore the daily care bond that existed before she was sent into custody and promote the welfare of the children by returning them to the daily care and contact of the person who it was envisaged would be looking after them with sole responsibility thereafter.  If it was concluded that the mother's care was so poor or intermittent that the best interests of the children required them to be supervised in the future by the social services and/or they should be permanently separated from their mother, it would have highlighted the degree of intended interference with the family life of mother and children that would become the focal point at the Article 8 appeal. (emphasis added).

The Court held that the decision to detain clearly had ‘serious implications’ for the welfare of the children, and the failure to take account of the children’s interests was unlawful in the circumstances.

The Court further held that the ‘continued detention was disproportionate and not necessary in a democratic society’.

Relevance to the Victorian Charter

Broadly, this decision re-affirms the principle that where the interests of children are at issue, such interests should be the primary consideration of a decision maker when exercising discretion.  This principle is particularly relevant to the interpretation of s 17 of the Charter, which relates to the protection of families and children.  For example, the decision may be relevant to the circumstances of a Victorian female prisoner with young children, who wishes to be transferred to an institution where her children can remain with her during the term of her imprisonment.

This case could also bear upon the relationship between s 17 and s 21 of the Charter (s 21 being the right to liberty and security of the person, which prohibits arbitrary arrest and detention).  For example, the decision might be relevant where a Victorian detainee with dependent children is applying for bail.  On the basis of this decision, it might be possible to argue that, because the interests of dependant ‘children of tender years’ are affected, in order for the parent’s detention to be proportionate (that is, not arbitrary) under s 21 of the Charter, the detention must be compatible with s 17 of the Charter.

This decision will have no direct impact on immigration related decisions, as the Charter does not apply to decisions of federal public authorities.

The decision is at

Jacqui Bell is on secondment to the Human Rights Law Resource Centre from Blake Dawson