ZS (Jamaica) & Anor v Secretary of State for the Home Department

In an Article 8 removal case, a child's best interests are the starting point and a primary consideration. They rank higher than any other single factor, but they do not automatically determine the outcome and may be displaced by sufficiently strong countervailing considerations. The assessment must address the child's interest in living with and being with the relevant parent, evidence of harm or adaptation, the strength of family and private life, and the practical effect of removal. A serious and sustained breach of the Immigration Rules is a material public-interest factor requiring commensurate weight. A tribunal errs in law if it omits or marginalises these matters, or infers further trauma without evidential support.

The first appellant, a Jamaican national, held leave to remain as a student. Her dependent son was also Jamaican. After she admitted sustained work beyond the hours permitted under the Immigration Rules, the Secretary of State refused further leave and proposed removal of both appellants to Jamaica.

The First-tier Tribunal allowed the Article 8 appeal, finding removal disproportionate, particularly in light of the child's best interests and the effect of an earlier removal. The Upper Tribunal set that determination aside for material errors of law and remade the decision in favour of the Secretary of State. The Court of Appeal considered whether those errors were genuine errors of law and whether the Upper Tribunal's own Article 8 assessment was flawed.

1. Disposition and appellate review. The appeal was dismissed. The Court of Appeal was required to decide for itself whether the Upper Tribunal was justified in finding a material error of law, while recognising that a mere disagreement with the First-tier Tribunal's factual assessment is not an error of law. This approach was supported by the observations in AP (Trinidad and Tobago) v SSHD [2011] EWCA Civ 551.
2. Best interests and proportionality. There was no criticism of the First-tier Tribunal's self-direction by reference to ZH (Tanzania) v SSHD [2011] 2 AC 166. The child's best interests are the starting point and a primary consideration. They rank higher than any other single factor, but sufficiently strong countervailing considerations may displace them. The child's best interests remain a primary consideration rather than the sole or determinative consideration.
3. Material errors in the First-tier Tribunal's reasoning. In assessing a young child's best interests, the Tribunal failed to address the important interest in living with and being with the mother, particularly where the father had no role. It also inferred that a planned and lawful removal would cause further trauma merely from the traumatic effect of an earlier peremptory removal, without expert or other evidential support. Ordinary disruption and upset were not equivalent to further psychological trauma.
4. The Tribunal failed properly to assess the strength and quality of the family and private life engaged. The appellants would be removed together, so their relationship would not itself be disrupted by removal. The Tribunal needed to consider the nature of the child's wider family ties in the United Kingdom, the appellants' Jamaican nationality and family connections there, and the possibility of maintaining contact with relatives in the United Kingdom.
5. The first appellant's sustained breach of the Immigration Rules, by working substantially beyond the permitted hours as a student, was a serious countervailing public-interest factor. Financial necessity and the absence of other adverse immigration history did not justify treating the breach as a minor transgression. It required commensurate weight in the proportionality assessment.
6. The Upper Tribunal's remaking of the decision was not flawed. Read as a whole, its determination showed that it treated the child's best interests as the starting point and concluded that the countervailing factors, taken cumulatively, outweighed them. ZH did not require the child's position to be considered before the adult's in a formal sequence. The Upper Tribunal was therefore entitled to set aside the First-tier Tribunal's determination and allow the Secretary of State's appeal.

1. Court of Appeal (Civil Division): On 13 December 2012, dismissed the appeal from the Upper Tribunal: [2012] EWCA Civ 1639.
2. Upper Tribunal (Immigration and Asylum Chamber): On 21 September 2011, set aside the First-tier Tribunal's determination for material errors of law and remade the decision, allowing the Secretary of State's appeal.
3. First-tier Tribunal: On 26 May 2011, allowed the appellants' appeal against refusal of further leave and proposed removal, holding removal disproportionate under Article 8.