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

The best interests of children affected by removal or deportation decisions must be a primary consideration in the proportionality assessment under Article 8, to be considered first, but they are not invariably decisive; citizenship of the child is a weighty factor (often of considerable importance) though not a trump, and the decision-maker must balance those interests against other substantial countervailing considerations such as immigration control.

This is an appeal against the Immigration Tribunal and the Court of Appeal concerning whether removal of a non-citizen parent was proportionate under Article 8 ECHR where both children are British citizens who would have to leave the UK with the parent. The Secretary of State ultimately conceded that removal was disproportionate in the particular facts. The Supreme Court considered the proper approach to assessing children’s best interests, the role of the child’s citizenship, the duty under section 55 of the Borders, Citizenship and Immigration Act 2009, and relevant Strasbourg authorities, and allowed the appeal against the lower courts’ reasoning. The central issue was: how should decision-makers weigh the best interests of children (including the significance of citizenship) when considering removal of a parent?

Overall disposition: The Supreme Court (majority) allowed the appeal, holding that the Tribunal and Court of Appeal had failed to give proper primacy to the best interests of the children and had undervalued the significance of the children’s British citizenship in the proportionality assessment under Article 8.

1. The court sets out the governing approach to Article 8 proportionality in removal cases involving children. The best interests of the child must be treated as a primary consideration and should be identified and considered first; they may nevertheless be outweighed by other considerations of sufficient weight (paras 26, 29).
2. The court explained how international instruments (notably the UN Convention on the Rights of the Child) and Strasbourg jurisprudence inform the evaluation of best interests, but they do not convert best interests into an absolute or paramount rule in all contexts; decision-makers must perform a careful evaluative exercise taking into account factors such as integration, the child’s ties to the UK, the practicability of relocation and likely hardship (paras 17–33).
3. Children’s citizenship is not a conclusive ‘trump card’, but it is a factor of particular importance and often of very significant weight; as citizens children possess rights and advantages (social, cultural, educational and protective) which weigh heavily against their forced removal and should not be readily discounted (paras 31–33, 41).
   • The Court criticised the Tribunal and Court of Appeal for failing to analyse properly the advantages of British citizenship and for allowing considerations about the parents’ knowledge of precarious immigration status to dilute the weight accorded to the children’s interests (paras 40–44).
4. Decision-makers must consider the child’s own views where the child is capable of forming them; in many cases it will be practicable to obtain relevant information without separate legal representation, but decision-makers must be prepared to hear children where appropriate (paras 34–37).
5. The Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 requires arrangements to ensure functions are discharged having regard to safeguarding and promoting the welfare of children; failure to have regard to children’s welfare can render a decision not "in accordance with the law" for Article 8(2) purposes (paras 21–25).
6. Applying these principles to the facts, the court concluded that, on balance and having properly prioritised the children’s best interests and the significance of their citizenship, removal of the mother was disproportionate and the appeal succeeds (paras 31–33, 38). The Secretary of State conceded that result in the particular facts and the court affirmed that concession.
7. Orders and practical guidance: The appeal is allowed. The judgment provides detailed guidance for decision-makers and tribunals: identify best interests first, give them primary weight, evaluate the child’s citizenship and integration, consider alternatives and the child’s views, and apply section 55 obligations. Remittal or costs directions are not a material part of the operative reasoning in this judgment (paras 36–38).

• Court of Appeal: [2009] EWCA Civ 691 — appeal dismissed; this Supreme Court allowed the appeal and corrected the Court of Appeal's reasoning.
• Immigration and Asylum Tribunal: Appeal Number IA/01284/2008 — Tribunal dismissed the appellant's appeal; Senior Immigration Judge McGeachy granted reconsideration on a material error of law for failure to consider the children’s rights.