ZH (Tanzania) FC (Appellant) v Secretary of State for the Home Department  UKSC 4 (1 February 2011) Summary
The Supreme Court of the United Kingdom has held that the 'best interests of the child' should be the first consideration where children are affected by the decision to remove or deport one or both of their parents. While the best interests of the child can be cumulatively outweighed by other factors in determining proportionality, no consideration is inherently more significant than the best interests of the child.
The applicant, a Tanzanian national, arrived in the UK in 1995. She made three unsuccessful claims for asylum, one using her own identity when she first arrived and two using a false Somali identity. She formed a serious relationship with a UK citizen in 1997 and the pair subsequently had two children, now aged 9 and 12, who have lived in the UK all their lives. In 2001, the applicant appealed a decision to have her removed to Tanzania, claiming that her removal would be in breach of Article 8 of the European Convention on Human Rights, however her appeal was dismissed. In 2006, a further application for leave to remain under the 'one-off family concession' was refused. The applicant and her partner separated in 2005, although the children's father regularly visited the children. After he was diagnosed with HIV in 2007, the applicant made additional representations to the Secretary of State. These, in turn, were rejected and her appeal to the Asylum and Immigration Tribunal was ultimately unsuccessful.
On appeal to the English Court of Appeal, the applicant argued that the UK citizenship of the children was a 'trump card' preventing her removal. However, in keeping with the authorities that there is no 'hard-edged or bright-line rule', the appeal was dismissed.
On appeal to the Supreme Court of the United Kingdom, the applicant argued that insufficient weight was given to the welfare of all children affected by decisions to remove their parents, and in particular to the welfare of children who are UK citizens, in a manner that was incompatible with their right to respect for family and private life considered in light of the obligations of the United Kingdom under the United Nations Convention on the Rights of the Child and domestic law. The Secretary of State, who ultimately conceded that it would be disproportionate to remove the mother on the facts of this case, sought to clarify the general principles which the UK Border Agency and appellate authorities should apply in similar cases.
The court unanimously allowed the appeal. In reviewing domestic case law on the impact decisions of immigration authorities had on the right to family life, she considered that a decision-maker would be called upon to balance the reason for expulsion/ deportation against the impact of that decision on family rights in two different sorts of cases: where residents have committed criminal offences and in the ordinary immigration context. Her Ladyship found that the starting point in each of these cases is that states are entitled to control the entry of aliens into their territory and their residence there and that Article8 does not confer an absolute right to remain in that state’s territory. However, where expulsion will interfere with the right to respect for family life, it must be necessary and proportionate to the legitimate aim pursued.
Her Ladyship concluded that in making the proportionality assessment under Article 8, the best interests of the child is the primary consideration. She considered this to mean that the best interests of the child must be considered first, even though they could still 'be outweighed by the cumulative effect of other considerations'. Lord Kerr alone considered that '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'.
Ultimately, the court concluded that the 'best interests of the child' broadly means the 'well-being of the child'. Ascertaining the best interests of the child will thus involve asking whether it is reasonable to expect the child to live in another country. Relevant factors in this regard are 'the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away'. While nationality is not a 'trump card', it is of particular importance in assessing the best interests of any child, not least because of the 'intrinsic importance' of citizenship. Where a child is old enough to express his/ her own views, immigration authorities should be prepared at least to consider hearing directly from the child.
In this case, the need to maintain firm and fair immigration control, coupled with the applicant’s 'appalling immigration history and the precariousness of her position when family life was created' were countervailing considerations. However, the court concluded that the children were not to blame for this and, as stated by Lord Hope, it would be 'wrong in principle to devalue what was in their best interests by something for which they could in no way be held responsible'. On the facts, the best interests of the child outweighed these considerations as the kids had an 'unqualified right of abode in Britain', had spent all their lives there, had a good relationship with their father there and did not know Tanzania.
Relevance to the Victorian Charter
Section 17 of the Charter, which is modelled on Articles 23 and 24 of the ICCPR, provides for the protection of families and children. Section 17(1) provides that families are the fundamental group unit of the state and are entitled to protection. Moreover, section 17(2) provides that every child has the right, without discrimination, to such protection as is in her best interests and is needed by him or her by reason of being a child. This case provides guidance on how to ascertain what the 'best interests' of the child are and how those interests are to be treated in the context of proportionality assessments, which is particularly pertinent given the reliance in the decision on key Australian cases on the best interests of the child.
The decision is at: www.bailii.org/uk/cases/UKSC/2011/4.html
Rebecca James is a lawyer at Allens Arthur Robinson