EV (Philippines) & Ors v Secretary of State for the Home Department

In an Article 8 removal case, a child’s best interests are a primary consideration, but not the paramount consideration. The tribunal must identify those interests first and assess their weight by reference to the child’s age, residence, education, ties with the proposed country of return, capacity to adapt, family life and citizenship rights.

The tribunal must then conduct a fact-sensitive proportionality assessment. Strong immigration control may outweigh an interest in continuing education in the United Kingdom where the whole family can return together, the children retain realistic prospects of education and reintegration abroad, and their connection with the United Kingdom is limited. The practical question is whether it is reasonable to expect the child to accompany a parent who has no right to remain.

The appellants were a Philippine family. The mother had entered the United Kingdom as a skilled care worker, followed by her husband and three children. Their applications for indefinite leave to remain were refused after a prolonged procedural history, including earlier decisions about the validity of application forms and a later Article 8 decision.

The First-tier Tribunal dismissed the family’s appeal. It found that removal would interfere with their private lives and that it was in the children’s best interests to remain with their parents and avoid disruption to their education. It nevertheless held removal proportionate. The Upper Tribunal dismissed a further appeal.

On an appeal limited to the children’s best interests, the central issue was whether the public interest in effective immigration control could outweigh the finding that the children’s education in the United Kingdom should not be disrupted.

1. Appeal dismissed. The First-tier Tribunal had made no error of law, and the Upper Tribunal was correct to uphold its decision.

2. The appeal was confined to the ground for which permission had been granted. The appellants could not introduce a new challenge concerning their earlier application shortly before the hearing without seeking to amend the notice of appeal or to widen permission. In any event, the Secretary of State’s Article 8 decision had not been influenced by any assertion that the family were overstayers.

3. Under Article 8, and consistently with ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, children’s best interests must be treated as a primary consideration. They are not paramount. The tribunal must consider them first, assess the strength of the factors favouring remaining, and then decide whether countervailing considerations outweigh them.

4. The assessment is fact-sensitive. Relevant matters include the children’s age, length of residence and education in the United Kingdom, educational stage, ties with and capacity to readapt to the country of return, linguistic or medical difficulties, family-life consequences, and any British citizenship rights. The stronger the case that return would harm the child’s interests, the stronger the countervailing case required. The public interest in effective immigration control carries strong weight, particularly where the applicants have no entitlement to remain.

5. The tribunal was entitled to find that it was reasonable for these children to return with both parents. The family had been in the United Kingdom for a limited period; the parents were employable in the Philippines; accommodation and extended family support were available; and the children would have access to proper education there. There would be no separation of the family. Disruption to education in the United Kingdom did not, on these facts, outweigh immigration control.

6. Lewison LJ added that the assessment must reflect the real-world position. Where neither parent has a right to remain and the family will not be separated, the practical question is whether it is reasonable to expect the child to accompany the parents abroad. He also observed that the public cost of education may be relevant to the economic well-being side of the proportionality balance.

• Court of Appeal (Civil Division): Dismissed the appeal in [2014] EWCA Civ 874 and upheld the Upper Tribunal’s decision.

• Upper Tribunal (Immigration and Asylum Chamber): Judge Moulden dismissed the appeal from the First-tier Tribunal by a judgment promulgated on 10 July 2013.

• First-tier Tribunal: Judge Walters dismissed the appeal against the Secretary of State’s refusal of the renewed applications and removal decision by a judgment promulgated on 3 May 2013.