Tinizaray, R (on the application of) v Secretary of State for the Home Department

Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to immigration decisions affecting a child, including a self-volunteered application for indefinite leave to remain which does not immediately involve removal. The child’s best interests must be considered first and treated as a primary, though not paramount, consideration. They must be balanced against the reasons for refusal or removal, without treating other considerations as inherently more important. The decision-maker must obtain sufficient information about the child’s welfare, circumstances, education, relationships, nationality and views. A child capable of forming views must be heard, with due weight given according to age and maturity. Decisions based on inadequate information or assumptions about adaptation are unlawful.

The claimant sought judicial review of four decisions refusing indefinite leave to remain to herself, her mother and her daughter. The daughter had been born in England and had lived there throughout her life. The applications raised the defendant’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009, together with article 8 rights and the guidance in ZH (Tanzania) [2011] UKSC 4. The central issue was whether the defendant had properly considered the daughter’s best interests, circumstances and views when deciding whether the family should be permitted to remain in the United Kingdom.

1. Scope of the duty. Section 55 applied notwithstanding that the application was for indefinite leave to remain and did not itself create an immediate prospect of deportation. The duty was engaged because the decision directly affected a child.
2. Relevant decision and family members. The four decisions formed a rolling decision-making process. On each occasion the decision-maker should reconsider the matter afresh. Each family member also required separate consideration because each had distinct, although related, article 8 rights and interests.
3. Best interests and proportionality. Following the guidance in ZH (Tanzania) [2011] UKSC 4, the decision-maker had to balance the reasons for refusal or removal against the impact on the child. The child’s upbringing and general well-being, and whether it was reasonable to expect the child to live in another country, were relevant. Best interests had to be considered first and treated as a primary consideration, but they were not paramount. They could be outweighed by the cumulative strength of other considerations.
4. Relevant information. The decision-maker had to obtain sufficient information to compare the child’s life in the United Kingdom with the proposed life abroad. This included information about education, language, relationships, social connections, living arrangements, developmental welfare and the child’s own views. Reliance solely on a parent’s volunteered information was insufficient where it was incomplete or potentially slanted. Appropriate further steps could include requests for evidence, interviews, questionnaires and reports from schools, social services or other relevant agencies.
5. Application. The decisions contained inadequate information and unsupported assumptions, including assumptions about the child’s ability to adapt to the Ecuadorian school system despite her limited ability to read or write Spanish. They failed to give appropriate, let alone primary, consideration to her best interests and views. All four decisions dated 3 September 2009, 9 December 2009, 16 June 2010 and 3 March 2011 were set aside.

The claim was a first-instance judicial review. Permission was granted by the same judge, who directed reconsideration of the defendant’s decision in light of section 55 of the Borders, Citizenship and Immigration Act 2009.