L3 v Secretary of State for the Home Department

Children’s best interests and British citizenship are important considerations in an article 8 proportionality assessment, but neither is a trump card. Their weight depends on the circumstances, including the family’s ties to the United Kingdom and the national-security risk. A specialist tribunal may be taken to have applied familiar principles under the Borders Citizenship and Immigration Act 2009 where its reasons address citizenship, family impact and proportionality.

The Zambrano inquiry is practical and multifactorial. It is not confined to legal compulsion or total dependency. The assessment must address the child’s actual circumstances, primary carer, ties to each parent and risks of separation. Any derivative right is subject to public security and proportionality. An error need not lead to remittal where the outcome is inevitable.

L3, a Libyan national, challenged a decision excluding him from the United Kingdom on national-security grounds. His wife and six children, all British and Libyan citizens, had returned to Turkey to live with him. The Secretary of State had withdrawn an earlier exclusion decision and made a fresh decision, which was reviewed by the Special Immigration Appeals Commission under section 2C of the 1997 Act.

SIAC dismissed the review, finding a significant national-security risk and a proportionate interference with family life. It assumed, without deciding, that article 8 was engaged and applied an entire-dependency and legal-compulsion approach to the Zambrano issue. The appeal concerned the weight given to the children’s best interests and citizenship, and the correct Zambrano test.

Lady Justice Laing gave the leading judgment, with Lord Justice Peter Jackson and Lady Justice Macur agreeing. The appeal was dismissed.

1. Best interests and citizenship. The guidance in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 was not treated as obiter, but it was not decisive in this national-security context. Children’s best interests must be considered first, and British citizenship is particularly relevant, but citizenship is not a trump card. Its weight depends on the facts and may be outweighed by national security.
2. Ground 1. SIAC could be taken to have applied the familiar principles under section 55 of the Borders Citizenship and Immigration Act 2009 and ZH (Tanzania). Its reasons showed that it had considered the children’s citizenship, their entitlement to live in the United Kingdom, the family’s evidence and the interference with family life. SIAC was entitled to take account of the family’s relatively short and non-exclusive connection with the United Kingdom. Given the significant risk and the absence of a less intrusive means of managing it, any error was immaterial.
3. Ground 2. SIAC applied the wrong Zambrano test by requiring legal compulsion or total dependency. The correct inquiry is multifactorial and concerns practical compulsion on the actual facts. It requires consideration of the primary carer, the child’s age and development, emotional ties to each parent, and the risks of separation. The burden lay on L3. The evidence did not establish the necessary dependency, and the family’s choice to return to Turkey was insufficient.
4. Even if a Zambrano right had arisen, it was qualified by public security. Applying Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53, the national-security threat, family-life interference and proportionality had to be balanced. On SIAC’s findings, national security would have outweighed the right.
5. The Court did not decide whether article 8 was engaged. Its provisional view was that, following the United Kingdom’s departure from the EU, remittal on the Zambrano ground would be futile. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) — Appeal dismissed. Ground 1 disclosed no material error, and the error identified on ground 2 could not affect the outcome.
• Special Immigration Appeals Commission — Dismissed L3’s statutory review of the fresh exclusion decision, treating article 8 as engaged for the purposes of its reasoning and rejecting the Zambrano claim.
• Procedural stage — The application concerning the withdrawn decision was treated as withdrawn under rule 11A of the applicable Rules; the challenge proceeded against the fresh decision.