JW (China) & Anor v Secretary of State for the Home Department

In an Article 8 removal case affecting a child, the tribunal must assess the child’s best interests first and overall. They are a primary, not paramount, consideration. The assessment requires attention to relevant circumstances, including relationships, integration, nationality, care arrangements and the practical effect of removal. A separate proportionality assessment must then weigh those interests against immigration control and other public interests. A better standard of living in the United Kingdom is not, by itself, decisive. Failure to explain how the findings and competing factors produce the conclusion is an error of law. Where an infant has no independent ties in the United Kingdom and will remain with the sole carer, that relationship is important but must still be weighed with all other factors.

The first appellant, a Chinese national, entered the United Kingdom illegally as a minor and later claimed asylum. Her son, the second appellant, was born in the United Kingdom and had no relationship with his father. The Secretary of State refused the asylum claim and decided that removal would not breach Article 8.

The First-tier Tribunal rejected the asylum and Article 3 claims but allowed the Article 8 appeal. On the Secretary of State’s appeal, the Upper Tribunal set aside that decision for inadequate reasoning and, after a resumed hearing, remade the decision, finding removal proportionate. The appellants appealed to the Court of Appeal on whether the Upper Tribunal had been entitled to interfere and whether it had properly assessed the child’s best interests and their effect on proportionality.

Appeal dismissed. Lord Justice Davis delivered the leading judgment, with Lord Justice Pitchford and Lady Justice Arden agreeing.

1. A superior tribunal may not interfere merely because it disagrees with a specialist tribunal’s factual conclusion. However, failure to give adequate reasons is an error of law capable of justifying the decision being set aside. The reasoning requirement in Article 8 cases includes explaining why the identified hardship makes removal disproportionate, consistently with VW (Uganda) [2009] INLR 295 and the observations in R v Special Adjudicator ex parte Ullah [2004] 2 AC 323.
2. In light of section 55 of the Borders, Citizenship and Immigration Act 2009 and ZH (Tanzania) [2011] UKSC 4; [2011] 2 AC 166, the child’s best interests must be considered first. They must be assessed overall, by weighing the relevant factors, and are a primary rather than paramount consideration. The inquiry cannot be reduced to whether the child would enjoy better economic or social conditions in the United Kingdom.
3. The best-interests assessment is distinct from the wider Article 8 proportionality exercise. Immigration control and other public-interest considerations must not form part of the best-interests assessment, but must be weighed at the proportionality stage. Different factors carry different weight, and cumulative countervailing considerations may outweigh the child’s best interests. The approach in MK (Best interests of child) [2011] UKUT 00475 (IAC) was endorsed.
4. For an infant with no independent family or private life in the United Kingdom, the preservation of the relationship with the sole carer may be an important consideration. If mother and child are not to be separated, that fact is relevant to proportionality but does not determine it.
5. The First-tier Tribunal had failed to analyse its own preserved findings, had not conducted an overall assessment of the child’s best interests, and had not explained the weight given to immigration control. Its reasoning therefore disclosed an error of law. The Upper Tribunal’s remaking decision addressed the relevant factors, including the absence of medical issues or established United Kingdom ties, the lack of risk on return, the social upbringing charge and the continued availability of basic living conditions, education and medical treatment. No error of law was shown in the Upper Tribunal’s conclusion that removal was proportionate.

1. Court of Appeal (Civil Division) — The appeal was dismissed: [2013] EWCA Civ 1526.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 4 December 2012, the decision of the First-tier Tribunal on Article 8 was set aside for inadequate reasons. On 13 February 2013, after a resumed hearing, the decision was remade and removal was held proportionate.
3. First-tier Tribunal — By determination dated 24 July 2012, the asylum and Article 3 claims were rejected, but the Article 8 appeal was allowed on proportionality grounds.