AJ (India) v Secretary of State for the Home Department

When assessing removal under article 8, a child’s best interests form an integral and primary consideration. They must be identified and kept in mind throughout the proportionality assessment, but they are neither the paramount consideration nor necessarily decisive. Their weight depends on the child’s family circumstances and may be outweighed by the cumulative strength of other considerations, including effective immigration control.

A tribunal’s failure expressly to cite section 55 of the Borders, Citizenship and Immigration Act 2009 does not invalidate its decision where the substance of the duty has been discharged. An appellate immigration tribunal may itself consider the child’s interests and determine the appeal; it need not remit the matter merely because the Secretary of State did not consider section 55.

Three related proceedings concerned the effect of section 55 of the Borders, Citizenship and Immigration Act 2009 and ZH (Tanzania) [2011] UKSC 4 on immigration decisions affecting children.

SP appealed against the dismissal by the First-tier Tribunal and Upper Tribunal of his challenge to removal to India with his wife and two-year-old son. The Secretary of State had not known of the child when refusing leave, and the tribunals had not expressly referred to section 55. EJ had been offered remittal for a fresh article 8 proportionality assessment, making determination of her appeal academic. AJ challenged a non-appealable refusal of leave by judicial review; the distinct legal issue arising in his case was reserved for written submissions.

The central questions were whether the tribunal had to remit SP’s case because the Secretary of State had not considered section 55, and whether the tribunal’s own assessment substantively complied with the statutory duty.

1. Disposition. SP’s appeal was dismissed unanimously. EJ’s substantive case was not determined because the Secretary of State had offered remittal for a fresh article 8 assessment and a decision on the existing facts would be academic. The distinct point in AJ’s judicial review concerning non-appealable decisions was reserved for written submissions. The formal order recorded that the appeals were dismissed.

2. An appellate immigration tribunal performs a decision-making rather than merely reviewing function. Under sections 82 and 86(3) of the Nationality, Immigration and Asylum Act 2002, it may hear evidence, find facts, decide questions of law and determine for itself whether the challenged decision is lawful. It was therefore entitled to consider the child’s interests and section 55 for itself. The Secretary of State’s earlier failure to do so did not require automatic remittal: Huang [2007] 2 AC 167 and DS (Afghanistan) [2011] EWCA Civ 305 applied.

3. The section 55 duty is integrated into the article 8 proportionality assessment. The child’s best interests are a primary consideration and must be considered first, but they are not the primary or paramount consideration. They may be outweighed by the cumulative strength of other considerations, provided no competing consideration is treated as inherently more significant. The important matter is the overall assessment, with the child’s interests kept in mind throughout.

4. The assessment of a child’s interests includes the family context. Relevant matters include the child’s integration in the United Kingdom, familiarity with the proposed country of residence, care arrangements, and relationships that would be severed. Particularly weighty reasons are required where removal would separate a child from a parent or from a community in which the child has grown up.

5. Express reference to section 55 is not indispensable. The court must examine the substance of the decision and its reasoning. In SP’s case the tribunal had considered the child’s age, lack of schooling or independent ties, continued residence with both parents, and the parents’ familiarity with India. It had treated his welfare as a primary consideration and had not relegated it to secondary status. The statutory duty and guidance were therefore satisfied in substance. In any event, the evidence could not properly have produced a different result.

• Court of Appeal (Civil Division): SP’s appeal was dismissed unanimously in [2011] EWCA Civ 1191. EJ’s case was not determined on its existing facts because the Secretary of State had offered remittal. AJ’s distinct judicial-review point was reserved for written submissions.
• Upper Tribunal: SP’s further appeal was dismissed. The Deputy Upper Tribunal Judge held that, although section 55 had not been expressly cited, the First-tier Tribunal had considered the child’s best interests. EJ’s earlier tribunal decision was to be reconsidered following the Secretary of State’s offered remittal.
• First-tier Tribunal: SP’s appeal against refusal of leave and removal directions was dismissed after an article 8 assessment addressing the circumstances of his wife and young child.
• High Court: Ouseley J refused AJ’s application to quash the non-appealable refusal of leave by judicial review. No citation is stated in the judgment.