ZH (Tanzania) (FC) v Secretary of State for the Home Department

In an article 8 removal decision affecting a child, the child’s best interests must be identified and considered first as a primary consideration. They are not automatically decisive, but may be outweighed after the cumulative strength of other considerations has been assessed.

The assessment is fact-sensitive. It includes whether relocation is reasonable, the child’s integration, care arrangements, relationships that relocation would sever, and nationality. British citizenship is not a trump card, but is a particularly important and weighty factor because of the rights and benefits it carries.

Parental immigration misconduct may weigh in the balance, but it cannot be attributed to the child or used to devalue the child’s interests. The family unit and the impact on each member must be considered as a whole.

The appellant was a Tanzanian national with an adverse immigration history. Her two children were British citizens who had lived in the United Kingdom throughout their lives. They lived with her as their primary carer and maintained a relationship with their British father.

After reconsideration, the immigration tribunal dismissed her article 8 appeal. It considered that the children could either remain with their father or accompany their mother to Tanzania. The Court of Appeal dismissed her further appeal in [2009] EWCA Civ 691.

Before the Supreme Court, the Secretary of State conceded that removal would be disproportionate on the particular facts. The Court nevertheless addressed the general approach to the best interests of children, particularly British citizen children, when deciding whether removal of a parent is proportionate under article 8.

1. Disposition. The appeal was allowed unanimously. Lady Hale delivered the leading judgment, with which Lord Brown and Lord Mance agreed. Lord Hope agreed fully with her reasons, and Lord Kerr agreed with both Lady Hale and Lord Hope. The Secretary of State had correctly conceded that removal of the mother would be disproportionate on the facts.

2. Best interests as a primary consideration. In assessing proportionality under article 8, the decision-maker must identify the child’s best interests and consider them first. Those interests are a primary consideration, rather than the sole or paramount consideration. They may be outweighed by the cumulative strength of other matters, but no competing consideration may be treated as inherently more significant. This best-interests-first approach adopted the reasoning in Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568.

3. Content of the assessment. The inquiry includes whether it is reasonable to expect the child to live in another country; the child’s integration in the United Kingdom and absence from the destination country; future care arrangements; and the strength of relationships that relocation would sever. Article 8 requires a careful, informed and fact-sensitive evaluation of the family unit as a whole.

4. Citizenship. Nationality is not a trump card, but it is particularly important when identifying a child’s best interests. British citizenship carries an unqualified right of abode and important social, cultural, educational and other benefits. The loss of those benefits during childhood must not be discounted merely because a young child might adapt to another country. Lord Hope added that British citizenship will hardly ever be less than a significant and weighty factor against removal of a child to another country.

5. Parental conduct. Effective immigration control and a parent’s serious immigration misconduct or precarious status may weigh against the family. Those matters cannot be attributed to an innocent child or used to devalue what is in the child’s best interests. Here, the children would inevitably accompany their primary carer, lose the benefits of growing up in their own country and suffer substantial disruption to their relationship with their father.

6. Statutory and procedural duties. Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to immigration decisions themselves. A decision taken without regard to the need to safeguard and promote the welfare of affected children is not in accordance with the law for article 8(2). Decision-makers must also be alert to children’s views. Separate representation will rarely be required, but authorities must consider hearing directly from a child who wishes to express a view and is sufficiently mature.

7. Lord Kerr emphasised that a course clearly favoured by a child’s best interests should customarily determine the outcome unless displaced by countervailing reasons of considerable force. He also regarded British citizenship as having an independent value in the proportionality balance.

1. United Kingdom Supreme Court: In ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4, the court unanimously allowed the appeal from the Court of Appeal.

2. Court of Appeal: In [2009] EWCA Civ 691, the court dismissed the appeal and upheld the tribunal’s conclusion that the children could reasonably be expected to accompany their mother to Tanzania.

3. Asylum and Immigration Tribunal: Following reconsideration, the tribunal dismissed the mother’s appeal in Appeal Number IA/01284/2008. It concluded that either the children remaining with their father or accompanying their mother would be proportionate.