LB, CB (a child) and JB (a child), Re

In an Article 8 removal case, a child’s best interests are a primary consideration of substantial importance, but are not paramount. A tribunal must not assume that a parent will be removed and then treat accompanying that parent as the complete best-interests assessment. There is, however, no mechanical requirement for a particular sequence of findings if the decision shows that the children’s interests were properly identified and balanced.

An appellate court should respect a specialist tribunal’s evaluative findings on family relationships unless they disclose legal error. Immigration control remains a substantial public interest. A child’s lack of responsibility for a parent’s immigration conduct does not reduce the weight of that interest.

The appellants were a Moroccan mother and her two young children. The mother had remained in the United Kingdom after her visitor visa expired. She relied, for Article 8 purposes, on the children’s relationships with her sisters and their cousins in the United Kingdom.

The First-tier Tribunal dismissed her appeal against the refusal of asylum, humanitarian protection and leave to remain. The Upper Tribunal set aside that decision for legal error, but remade the decision and again dismissed the appeal. It found that removal with their mother was in the children’s best interests and that the Article 8 balance favoured immigration control.

The appeal concerned whether the Upper Tribunal had adequately assessed the children’s best interests, properly evaluated the social worker’s report and family relationships, and impermissibly assumed that the mother would be removed before making that assessment.

1. Appeal dismissed. Laws LJ, with whom Floyd and Vos LJJ agreed, held that the Upper Tribunal had made no error of law in dismissing the Article 8 claim.

2. The Upper Tribunal had not rejected the social worker’s report. It accepted its account of the family relationships, but was entitled to reserve its assessment of the report’s opinions on the comparative merits of life in the United Kingdom and Morocco. Those opinions lacked an objective foundation because the social worker had no expertise in contemporary Moroccan culture.

3. The tribunal was entitled to characterise the relationships within the extended family as private life rather than family life between the adult sisters. It had also expressly considered the interests of the cousins. The Court of Appeal should accord a specialist tribunal a wide margin in evaluating the factual features relevant to Article 8 proportionality.

4. The children’s interests were a primary consideration, meaning one of substantial importance rather than a paramount consideration: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA (Civ) 550. The concern was not a formal temporal order of reasoning. The material question was whether the tribunal had assumed the mother’s removal and thereby failed to assess the children’s interests independently.

5. Read as a whole, the determination disclosed no such assumption. It was self-evident that the young children should remain with their mother. The tribunal had implicitly recognised that, considered in isolation, their interests might favour remaining in the United Kingdom, but had lawfully concluded that those interests did not outweigh the substantial public interest in immigration control.

6. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not alter that conclusion. The mother had never had leave to remain. Although children are not responsible for a parent’s immigration conduct, that principle does not diminish the weight of immigration control in the Article 8 balance.

• Court of Appeal (Civil Division) dismissed the appellants’ appeal and upheld the Upper Tribunal’s dismissal of the Article 8 claim.
• Upper Tribunal (Immigration and Asylum Chamber) (Judge Gleeson, 16 May 2013) set aside the First-tier Tribunal decision for error of law, remade the decision and dismissed the appeal against the Secretary of State’s refusal.
• First-tier Tribunal (Judge Jones) had dismissed the mother’s appeal against the refusal of asylum, humanitarian protection and leave to remain on human-rights grounds.