Considering The Best Interests of Children

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
29 October 2012

Four UK childrens’ commissioners wrote to Damien Green, the Minister of State for Immigration to express their deep concern about the new Immigration Rules that came into force on 9th July 2012 and about the guidance provided to the UKBA staff to assist them in considering the best interests of children as required by the UKBA duty under section 55 of the Borders Immigration & Citizenship Act 2009.  It confirmed that the Children’s Commissioners were not consulted prior to these changes becoming effective.

The understanding of the Commissioners is that section 55 imposes a duty on the UKBA to take childrens’ best interests into account in all immigration decisions or proceedings irrespective of the length of residence of the child in the UK.  It follows that they do not accept the implication in the new rules that childrens’ best interests only materialise or become substantive after seven years residence, or after spending half their lives in the UK if they have reached the age of maturity.  The circumstances of each child subject to an immigration decision need to be considered individually to determine the child’s best interests.  The Commissioners do not see how the Immigration Rules can reflect how the best interests of child may be considered in Immigration proceedings.  In their view the attempt to solve the inherent problems of this situation by developing and implementing a set of rules is incompatible with the approach set out and the precedence set by the Supreme Court decision in the case of ZH (Tanzania).  The newly implemented rules rely on the presumption that the decision maker will first apply the criteria set out in the Rules to assess whether the child or a parent of a child meets the criteria set out rather than determining the child’s best interests as a primary consideration that must be considered first as per the ZH Tanzania judgement.  The rules seek to quantify where a balance should be struck between the best interests of the child and the public interest when considering immigration decisions as they affect children.  Where cases fall outside the Rules, they state that only exceptionally will a decision in favour of the child or its parents remaining in the UK be required. This interpretation takes into account the cumulative impact of other factors may outweigh the best interests of the child and it is the Commissioners’ view that it is an inappropriate to provide for an exceptionality test in this context.

The Commissioners were concerned that the approach adopted in circumstances such as those described above may lead decision makers to a conclusion which may turn out to be false ie., that the public interest is fixed by the Rules as to its direction and weight.

The Commissioners thought it was wrong that simply because another family member may be in a position to care for a child that it would be possible for a parent to be deported.  In the Commissioners’ view it is wrong that simply because another family member may be in a position of being able to care for a child, this necessarily addresses what is in a child’s best interest if his or her parent faces deportation.  The loss of contact with a parent is very substantial for any child for whom even the best model or alternative care can be provided.  The fundamental right of the child to be with their parents is recognised by Article 7, 10 and 22 of the UNRC.

With regards to routes to final settlement, the criticism is that to extend a more uncertain route to settlement for family members under the new Rules is not in the childrens’ best interests. Potentially this leaves childrens’ futures and therefore those of their families, unsettled for longer periods than currently apply. This is likely to cause anxiety and distress to children.  The requirement in the new rules that a parent must show that they remain a parent of a child under 18 throughout the route to settlement seems to ignore the fact that children may have reached the age of maturity before the elapse of time over the five years route to settlement or the 10 years route to settlement has been completed.  The Commissioners therefore requested in August 2012 an urgent clarification on what will happen in cases where the child reaches the age of majority before the relevant route to settlement has been completed.  Furthermore the new Rules fail to site, or explicitly to recognise as they should, the UK’s obligation under Article 40 of the UNRC to treat child offenders in such a way as to promote and enable their reintegration into society.  Where a child offends and is also subject to the new rules, it is unclear how the new U.K. Immigration Rules will be applied in such a way to ensure the UK fulfils its obligations.