Thanks to section 55 of the Border, Citizenship and Immigration Act 2009 (which reflects article 3.1 of the UNCRC), as well as cases like Zoumbas v SSHD  UKSC 74, ZH (Tanzania) v SSHD  UKSC 4, and H (H) v Deputy Prosecutor of the Italian Republic  UKSC 25, it is now established law that the “best interests” of a related child must be regarded as “a primary consideration” for immigration and extradition decisions. However, this is not “the primary consideration” or “the paramount consideration [para 11 of ZH (Tanzania)]. When competing with other weighty public interest considerations, e.g. the public interest in deporting foreign criminals, the assessment process can turn out to be complicated, often problematic. This article seeks to explore some of the legal principles on the application of the “best interests” consideration for qualifying children in determining the immigration and/or extradition matters of foreign criminals.
The seven propositions of Zoumbas v SSHD  UKSC
The starting point is the seven propositions set out by Lord Hodge in Zoumbas [para 10], which have been well settled by subsequent cases:
“(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.”
Sub-paragraphs (2) and (3) make it clear that other important public interest considerations can outweigh the best interests of a child. Sub-paragraphs (4) – (7) outline some helpful guidance as to the proportionality assessment when the best interests of a child compete with such other considerations. (4) provides a caution that the best interest of a child should not be undervalued. (5) and (6) emphasise on careful examination of all factors and require decision makers to have clear idea of the child’s circumstances. (7) outlines a key underlying principle that the child must not be blamed for the actions of his/her parents or others.
A question of weight when pitted against other competing public interest consideration: “a primary consideration”, “the paramount consideration” or something in the middle?
Although cases like Zoumbas and ZH (Tanzania) have made it absolutely clear that the “best interests” of a child is not the paramount consideration, rather a primary consideration that can be trumped or outweighed by other important public interest considerations, the ECtHR’s decision in Jeunesse v Netherlands (2015) 60 EHRR 17 caused some confusion on this issue. At para 109 of this decision the ECtHR stated that the best interests of a child is “of paramount importance”. This has led many appellants and applicants to argue before the English courts and tribunals that the best interests of a child should be given higher consideration. Recently the Court of Appeal was faced with this question in HA (Iraq) & RA (Iraq) v SSHD  EWCA Civ 1176 when Lord Justice Underhill pointed out that the ECtHR itself recognised at para 118 of Jeunesse that the best interest of a child “cannot be decisive”, to dismiss such argument. However, one might still argue that there is a significant difference between what the ECtHR has stated in Jeunesse compared to the English courts’ current approach to this question. Paragraphs 109 and 118 of Jeunesse can be interpreted as to mean that the ECtHR’s view on this issues that the best interest of a child can be outweighed by other factors, but it is still of paramount importance – meaning that it should be given more weight, as opposed to equal weight, when competing with other public interest considerations, e.g. the interest in deporting foreign criminals. This interpretation can be derived from Lady Hale’s decision in H (H), where she stated [at para 15], “ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance”.
This should mean that the best interest of a child consideration can be outweighed by other factors but this is of primary or paramount interest, i.e. weightier than any other factor or public interest consideration. Even the decision of Zoumbas is consistent with this, which states at para 10(3) that the best interest of a child consideration can be outweighed “by the cumulative effect of other considerations” and “no other consideration can be treated as inherently more significant”. This means, undoubtedly, that the best interest of a child consideration cannot be given less weight than any other competing consideration, but this can also mean – given the use of the phrase “cumulative effect of other considerations” which indicates a combination of factors and not a single factor or consideration – that the best interests of a child consideration has a higher status or weight than any other single factor or consideration which (best interests consideration) can only be brought down or outweighed by a “combination of other factors or considerations”.
Despite this, the English courts’ approach in recent years is to treat the best interests consideration on equal or lesser footing compared to the public interest in deporting foreign criminals.
For example, at paras 34 and 36 of NA (Pakistan) v SSHD  EWCA Civ 662 the Court of Appeal stated:
“34. The best interests of children certainly carry great weight, as identified by Lord Kerr in H (H) v Deputy Prosecutor of the Italian Republic  UKSC 25;  1 AC 338 at . Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. …
- ….. in approaching the question of whether removal is a proportionate interference with an individual’s Article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal”
One might think that the court in this cases has given more or at least equal weight to the “high public interest in deporting foreign criminals” when compared with the best interests of children consideration.
Similarly, in KO (Nigeria) v SSHD  UKSC 53 Lord Carnwath approved and quoted [at para 33] the following from UTJ Southern’s determination of the very case at the Upper Tribunal stage:
“43. … There is undoubtedly a close relationship between this father and his children, as one would expect in any family living together as does this one. The preserved finding of fact is that, although it would not be unduly harsh for the four younger children to move to Nigeria, the reality of the situation is that they will remain here and, as the family relationships cannot be maintained by modern means of communication, there will be a complete fracture of these family relationships. The claimant is not authorised to work and so has been unable to provide financial support for his family but his role within the household has meant that his wife has been able to work, which she would find hard or impossible if she had to care on a daily basis for the children without her husband’s assistance. Thus it is said that if the claimant is removed, the main household income will be lost and the children would be subject to economic disadvantage. But, again, that is not an experience that can, in my judgment, be categorised as severe or bleak or excessively harsh as, like any other person lawfully settled in the United Kingdom, the claimant’s wife and family will have access to welfare benefits should they be needed.
- Nor do I have any difficulty in accepting the submission that the children, who have enjoyed a close and loving relationship with their father, will find his absence distressing and difficult to accept. But it is hard to see how that would be any different from any disruption of a genuine and subsisting parental relationship arising from deportation. As was observed by Sedley LJ in AD Lee v Secretary of State for the Home Department  EWCA Civ 248:
‘The tragic consequence is that this family, short-lived as it has been, would be broken up for ever, because of the appellant’s bad behaviour. That is what deportation does.’
This family relationship was not, of course, short lived but the point is the same. Nothing out of the ordinary has been identified to demonstrate that in the case of this particular family, when balanced against the powerful public interest considerations in play, although the children will find separation from their father to be harsh, it will not be, in all of the circumstances, unduly harsh for them each to remain in the United Kingdom after their father is removed to Nigeria.”
The key difference is in fact made by the statutory provisions. Section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which was introduced in the 2014 revised statutory framework, provides the following:
“(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where –
a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
Hence, for a foreign criminal who has been sentenced to less than 4 years’ imprisonment, the requirement is to show that the deportation would be unduly harsh for a qualifying child (i.e. British or someone living in the UK continuously for at least 7 years). For the foreign criminals with 4 years’ imprisonment or more that is not enough – it needs to be “very compelling circumstances, over and above” an unduly harsh outcome for a qualifying child. Paragraph 399(a) of the Immigration Rules takes the “unduly harsh” consequence requirement one step further. It breaks down the that requirement into two mandatory conditions – (i) it needs to be unduly harsh for the child to live in the country to which the foreign criminal is to be deported (“go scenario”), and (ii) it also needs to be unduly harsh for the child to remain in the UK without the person who is to be deported (“stay scenario”). Is it not attaching more weight on the public interest in deportation of the foreign criminals than the best interests of children and/or undervaluing the latter? Something significant is necessary in addition to the best interests of children, something very onerous – i.e. unduly harsh consequence or very compelling circumstances over and above that – to override the public interest in the deportation of foreign criminals. Clearly, this is giving precedence to the deportation over best interest of children.
If the above analysis is correct, then section 117C of the 2002 Act and most certainly paragraph 399(a) of the Immigration Rules are incompatible with ECtHR’s case law and therefore fall foul of the Human Rights Act 1998. Could these statutory provisions as well as the recent line of precedent set by English cases where the “best interests of children” has not been given “paramount importance” then be liable to be set aside or averted?
Burden of proof and evidential flexibility
The duty under section 55 of the Border, Citizenship and Immigration Act 2009 (“the 2009 Act”) falls on the decision maker(s), i.e. the Home Office and courts. It would naturally follow that the child would not have any burden of proof to establish his/her best interests in a given case. This is precisely what Lord Justice Peter Jackson stated in HA (Iraq) & RA (Iraq), at paragraph 154:
“….. the Section 55 duty falls on the decision-maker. A child will not usually be in a position to urge his or her point of view and the decision-maker cannot treat the child as if he or she had some burden of proof.”
It is the duty of the Secretary of State for the Home Department (“SSHD”) and decision making courts and tribunals to explore the circumstances of a qualifying child. The same was made clear by Underhill LJ at para 125 of HA (Iraq) & RA (Iraq):
“We were also shown the witness statement from RA that was before the UT, and it is fair to say that it goes no further than claiming that he “has always been a very involved father”. There was apparently a witness statement from his wife but we were not shown this. However, even if it contained nothing further of any substance as regards Y, both RA and his wife gave oral evidence, and this aspect could and should have been explored with them further to the extent that it was not adequately covered in cross-examination.”
This is striking. As a general rule an appeal court would not grant an appeal against a lower court’s decision on the basis of evidence or information which was not before the lower court at the time of its decision making. Only in limited circumstances, where fresh evidence is allowed, this might happen. However, in HA (Iraq) & RA (Iraq) the Upper Tribunal’s decision was criticised for not exploring something (evidence/information) that was not even put before the Tribunal by the appellant/applicant. Usually the onus is on the appellant/applicant to put forward his/her case with supporting evidence. In HA (Iraq) & RA (Iraq) when the appellant/applicant failed to do this (“the witness statement from RA that was before the UT……. goes no further than claiming that he “has always been a very involved father”“), the Court of Appeal expected the Upper Tribunal to extract further information as to the qualifying child’s circumstances from the appellant/applicant and his wife during their cross-examination.
There are two very important points to note from this. Firstly, the burden of presenting a qualifying child’s overall circumstances so that a “clear idea” can be formed and a “careful examination” can be undertaken is not on the applicant/appellant, and certainly not on the qualifying child. Secondly, the SSHD or decision making court/tribunal has a positive duty to explore the child’s circumstances to such level which would enable them to have “clear idea” and perform “careful examination” on the child’s best interests. This means that it might not be enough for the decision maker to say that the applicant/appellant failed to provide certain information or documents as to the child’s wellbeing at the time of making a refusal or deportation decision; if the decision maker is in a position to obtain or extract such information and/or documentation, it should do so. In practical terms this could be asking for further information from the applicant/appellant as to the child’s wellbeing, extracting such information from him/her during cross-examination or obtaining such documents/information from other sources (e.g. the school and GP of the child).
Another important point that follows from Underhill LJ’s above remark is that the restrictions on adducing further/fresh evidence at various appeal stages would not apply to the documents and information related to a qualifying child’s wellbeing, due to the duty imposed on the decision makers by s.55 of the 2009 Act, but also because of what the Supreme Court ruled at para 10(7) in Zoumbas – “A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent”.
Consideration of overall circumstances and sufficient reasoning
The fifth and sixth propositions of Zoumbas require decision makers to have “clear idea of a child’s circumstances and of what is in a child’s best interests” and conduct “careful examination of all relevant factors”. A decision maker must also provide sufficient reasoning to exhibit that it had such “clear idea” and that it carried out such “careful examination”. Failure to do this has been one of the most common grounds invoked in successful challenges to refusal and deportation decisions.
Four instances of this failure have been identified by Underhill LJ in HA (Iraq) & RA (Iraq) which could work as examples to illustrate the requirement on considering overall circumstances and providing sufficient reasoning as to the wellbeing of a qualifying child.
One of those instances is identified at paras 121-126 of HA (Iraq) & RA (Iraq). On that particular issue RA contended that “it was unclear from that reasoning [of the Upper Tribunal] what factors had been taken into account in considering the issue of undue harshness and that that made it impossible to see whether the best interests of Y [the qualifying child] had indeed been treated as a primary consideration”.
The reasoning under question was stated at paras 58-60 of the Upper Tribunal’s determination:
“58. If the appellant were deported, life for the appellant’s wife and the daughter would, we find, be hard. It would, however, be far from being unduly harsh. The appellant’s wife and daughter live in very close proximity to family members, who already provide assistance and who can be expected to help the appellant’s wife with the consequences of the appellant’s removal.
- The appellant’s wife has, until recently, worked part-time. She told us that she stopped because of the forthcoming tribunal hearing. She did not explain, however, why she was expected to do so much in connection with that hearing as to be unable to continue such work, particularly given the involvement of the appellant’s solicitors. In any event, following the appellant’s deportation, it can reasonably be expected that the appellant’s wife can work part-time, as do very many mothers with children of her daughter’s age. If, as has already occurred, the appellant’s wife has to have recourse to benefits, that would not be a matter that would cause or contribute to undue harshness.
- We agree with Mr Bazini that reliance upon modern means of communication, such as Skype, is no substitute for physical presence and face-to-face contact. We do not, however, believe that, in the event of deportation, such face-to-face contact would not be possible. The appellant’s wife has made several visits to northern Iraq in the past, including two with her (then very small) daughter. There is no suggestion that, at that time, the family’s financial circumstances were markedly better than they are at present or would likely be in the future. Accordingly, it would be entirely possible for the appellant to see both his wife and daughter on a face-to-face basis in Iraq.”
In response to RA’s challenge the Court of Appeal stated the following:
“122. I have to say that I believe that this is a fair criticism. Paras. 58-60 of the decision [of Upper Tribunal] do not in my view amount to the kind of particularised consideration that it is clear from Zoumbas is necessary in a case of this kind. In contrast to what we saw in HA’s case, there is simply no indication of the kind of role that RA played in the life of his daughter, from which it would be possible to make a considered assessment of the degree of harshness that separation from him would entail.
- I am aware that the degree of detail in a tribunal’s reasoning may reflect the way the case was put before it. However, we were shown Mr Bazini’s skeleton argument [on behalf of RA] before the UT. This relied on, and quoted from, the decision of the UT in MK (Sierra Leone)….. That was a foreign criminal case, where it was thought necessary to consider whether Exception 2 applied. The relevant finding is at para. 42 (v), which reads:
“We turn to consider the question of whether the Appellant’s deportation would have an unduly harsh effect on either of the two children concerned, namely his biological daughter and his step son, both aged seven years. Both children are at a critical stage of their development. The Appellant is a father figure in the life of his biological daughter. We readily infer that there is emotional dependency bilaterally. Furthermore, there is clear financial dependency to a not insubstantial degree. There is no evidence of any other father figure in this child’s life. The Appellant’s role has evidently been ever present, since her birth. Children do not have the resilience, maturity or fortitude of adults. We find that the abrupt removal of the Appellant from his biological daughter’s life would not merely damage this child. It would, rather, cause a gaping chasm in her life to her serious detriment. We consider that the impact on the Appellant’s step son would be at least as serious. Having regard to the evidence available and based on findings already made, we conclude that the effect of the Appellant’s deportation on both children would be unduly harsh. Accordingly, within the matrix of section 117C of the 2002 Act, ‘Exception 2’ applies.”
Mr Bazini’s submission [on behalf of RA] was that those observations applied, mutatis mutandis, to the impact on Y of RA’s separation.
- I do not say that Mr Bazini’s reliance on MK was well-founded….., but I quote this passage to show that the substantive points based on the impact on Y of separation from RA were squarely made in the UT; and I believe that they needed to be directly addressed.
- In short, the Tribunal’s conclusion on the stay scenario is in my judgement insufficiently reasoned. Since I have reached the same conclusion in relation to the go scenario the result is that HA’s appeal will have to be allowed and the case remitted to the UT for reconsideration.
Another instance was the Upper Tribunal’s failure to show clearly that it had given full weight to the importance of the British Citizenship of the qualifying child of RA. The appellant’s complaint here is that “[t]he glancing mention of Y’s British nationality in the first line of para. 54 of the [Upper] Tribunal’s Reasons was inadequate because it was not in the context of the undue harshness assessment” and “the [Upper] Tribunal made no reference to what Lady Hale calls “the intrinsic importance of citizenship””.
The Court of Appeal agreed. This was despite the Upper Tribunal taking into account the fact that in the “go scenario” the qualifying child would lose the opportunity of being educated in England. The following paragraphs would illustrate the point made by the Court of Appeal:
“114. I do see some force in this submission. I fully accept that this Court should not overturn the decision of a tribunal, let alone as experienced a tribunal as this, merely because it has not expressly mentioned a factor which it can fairly be assumed that it has taken into account. The Tribunal mentions Y’s British citizenship not only in para. 54 but also at para. 51, as part of its finding that she was a qualifying child, and I see the force of the argument that, having taken account of her nationality at that stage of its decision-making, it is unlikely to have left it out of account when making the assessment of undue hardship. However, the degree to which a tribunal needs to spell out its thinking must be sensitive to the circumstances of the particular case. The Tribunal’s reference to having reached its decision “with some degree of hesitation” shows that it regarded its decision on this issue as near the borderline. That must, with respect, be correct. Y would, on this alternative, be moving to a country with a very different culture and standard of living from the UK and a recent history of instability. The “very significant and weighty factor” of losing, at least for the rest of her childhood, the advantages of British citizenship might be thought to be particularly significant in the context of such a move, and I see the force of the argument that the Tribunal was obliged to show clearly that it had given it full weight. As Lord Hodge makes clear in Zoumbas, in any case involving the welfare of a child, a close scrutiny of all the substantially relevant considerations is required.
- Mr Pilgerstorfer submitted that the fact that the Tribunal had taken Y’s British citizenship into account in finding that Exception 2 was engaged was enough: that first stage in the structured decision-making imposed by the statute was part of the overall process of assessment under article 8. I do not accept that. Under the statutory scheme British citizenship does indeed operate to open the Exception 2 gateway. But in my view it does not follow that it can thereafter be ignored when making the assessment of whether the effect of relocation would be unduly harsh: such a mechanistic approach risks artificially restricting the holistic exercise required by article 8.
- Mr Pilgerstorfer also submitted that it was unnecessary for the Tribunal to spell out in full the factors to which it had had regard in its assessment of undue harshness because its conclusion was in RA’s favour – that is, that it was “plainly not in [Y’s] best interests” to live in Iraq. I do not accept that either. It is in truth pretty obvious (as the Tribunal’s use of “plainly” acknowledges) that it was not in Y’s best interests to move to Iraq, and not just because she would lose the benefits of her British nationality; but that does not mean that the enquiry can end there. What the Tribunal had to do was to assess in what respects, and to what degree, moving to Iraq was contrary to her best interests. That is indeed the exercise that it performs in para. 54, but without, as Mr Bazini submits, addressing one of the most weighty and significant factors.”
A third instance is the Upper Tribunal’s failure to provide “full explanation which demonstrated” that it fully took into account the situation facing the RA and his family (including the qualifying child) on their return to Iraqi Kurdish Region (the “go scenario”):
“117. I turn to elements [b] and [c]. The Tribunal proceeded on the basis that if they returned to Iraq the family would live in Erbil, where RA’s mother and sister live and where his wife had family and had gone on her three previous visits. That was entirely reasonable: although, so we were told, RA himself is from Kirkuk, it was found in the country guidance case of AA (Article 15 (c)) Iraq  UKUT 00544 (IAC) (“AA”) – which is broadly endorsed, though updated, in AAH (Iraqi Kurds – internal relocation) Iraq  UKUT 00544 (IAC) (“AAH”) – that Kurds from elsewhere in Iraq can readily relocate to the IKR. It is clear from the country guidance that conditions in the IKR are safer and more settled than in the rest of Iraq, and although we were shown, in support of element [c], warnings in the FCO guidance about some continuing risk to visitors from remnants of Daesh, I can understand why the Tribunal did not find that residual risk a significant factor in the assessment of whether relocation would be unduly harsh for Y.
- However, the country guidance does raise concerns about access to accommodation and employment for relocating Kurds who do not have family support: in particular, there is a finding that 70% of Kurds who are originally from outside the IKR are unemployed. Mr Bazini submitted that if RA was unable to secure proper accommodation or work, so that the family became effectively destitute, that would have a very serious impact on Y’s welfare. He pointed out that those issues are only referred to in the most general terms in para. 55, and the essence of element [c] under this ground is that the situation facing RA and his family on return is simply not adequately dealt with.
- Taking elements [a] and [c] together, I have come to the conclusion that the UT’s conclusion in this part of its decision is indeed not sufficiently reasoned. Economy in giving reasons is generally a virtue, but, as I have said, what is required depends on the particular case. The Tribunal’s conclusion was that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, in my view, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account.”
The fourth and final instance is the Upper Tribunal’s failure to take into account the fact that HA’s sentence (16 months’ imprisonment) was “only slightly above the minimum level” applicable (12 months’ imprisonment) for an immigrant to be qualified as a foreign criminal, considering that the range for “medium offenders” is 12 to less than 48 months’ imprisonment [para 90].
In addition to the above instances of failure, in HA (Iraq) & RA (Iraq) Peter Jackson LJ provided two examples where “a decision-maker may inadvertently be deflected from giving primary consideration to the best interests of the child of a foreign criminal” – (i) “focusing on the position of children generally rather than on the best interests of the individual child” and (ii) “treating physical harm as intrinsically more significant that emotional harm” [para 156].
These instances and examples of failure as to the requirement of considering overall circumstances and providing sufficient reasoning with regard to the wellbeing of a qualifying child as identified in HA (Iraq) & RA (Iraq), would certainly act as helpful guidance in weighing the best interests of a child consideration against the public interest in deporting foreign criminals.