The Supreme Court considered this issue in Zoumbas v Secretary of State for the Home Department 2013, handing down judgment this week.
although it chiefly deals with a judicial review of the Home Office decision that the children could be deported along with their parents to the Republic of Congo, it has some relevance for those advising Local Authorities or parents in care proceedings.
It has become less uncommon to be dealing in care proceedings with parents who are apprehensive at the words “Home Office” and often what one is trying to predict is whether the child would be able to remain in the UK once the Home Office have processed the case.
As relatively few family lawyers are also specialists in immigration law (there’s a limit to how many grey hairs any one human can have at one time), that second-guessing process of the intricacies and innate peculiarity / perverseness of Home Office decision-making is not a very scientific process.
I’m afraid that this case does not give a definitive answer – in fact, the Supreme Court were very plain that it was not permissible to have a “hard-edged or bright line rule to be applied to the generality of cases” when considering proportionality under article 8.
What the Supreme Court do say is that
“in our view, it is not likely that a court would reach in the context of an immigration decision what Lord Wilson described in H(H) (at para 172) as the “firm if bleak” conclusion in that case, which separated young children from their parents.”
And that whilst the children’s welfare is not PARAMOUNT, it is a primary factor and no other individual factor outweighs the children’s welfare (so the Home Office would need to stack against it a number of other factors to outweigh a decision which was contrary to the children’s welfare)
So, the Home Office is to consider the case, and it will decide either that everyone stays or everyone goes. [This of course raises curious dilemmas of what happens if say a man comes to England from the Congo, and remains here unlawfully, and marries a woman who has come to England from Angola, and remains here unlawfully; and they then have children together. Where do the children get deported TO?]
Here are the key principles in that consideration :-
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
One can see, I hope, that predicting what the Home Office decision will be becomes tricky. The best one can do is guess that the more troubled the country of origin, the less likely a decision to send children to it might be, and that the longer and more settled the children have been in the UK the greater the argument that it is in their best interests to remain in the UK.
If you are interested, the Supreme Court upheld the original decision of the Home Office, and refused the application for judicial review by the parents.
24. There is no irrationality in the conclusion that it was in the children’s best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision-maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being. We agree with Lady Dorrian’s succinct summary of the position in para 18 of the Inner House’s opinion.
Finally, we see no substance in the criticism that the assessment of the children’s best interests was flawed because it assumed that their parents would be removed to the Republic of Congo. It must be recalled that the decision-maker began by stating the conclusion and then set out the reasoning. It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance. When one has regard to the age of the children, the nature and extent of their integration into United Kingdom society, the close family unit in which they lived and their Congolese citizenship, the matters on which Mr Lindsay relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could have outweighed the considerations on which the decision-maker relied in striking the balance in the proportionality exercise (paras 17 and 18 above). The assessment of the children’s best interests must be read in the context of the decision letter as a whole.
If one were of course armed with a Guardian’s report and leave to disclose that, and a judgment and leave to disclose that, both setting out how settled and happy the children are in the UK, and the likely detrimental impact of moving them back to the Congo or wherever applicable, that couldn’t hurt…
Not binding on the Home Office of course, but it really couldn’t hurt.