Best interests of the child - can it save the parents?

15 April 2018

In the immigration law of both the UK and the EU the "best interests of the child" are specifically protected. This reflects the words in Article 3(1) of the UN Convention on the Rights of the Child:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".

The words "a primary consideration" are interesting: they are evidently not intended to have the same meaning as "the primary consideration", and therein is an important clue to the way that this provision should operate.

In the immigration context it can be that, in a family of two parents and one or more children, only one of the parents - or in some cases neither of the parents - has any immigration status. But the law requires decision-makers and the courts and tribunals to consider the best interests of the child or children.

This of course creates a dilemma: the Home Office would, generally speaking, like to remove from the UK a parent or parents who have no immigration status. Such a person may be guilty of overstaying or illegal entry and, in some cases, there may be serious criminality involved. But the Home Office is hardly likely to countenance splitting up a child from its parents.

So if, for example, neither parent has legal status then the Home Office might seek to remove the whole family from the UK, and maintain that this would be compatible with the best interests of the child doctrine.

But cases are not always so simple: one parent might have legal status. And, in some cases, the child might be a British citizen, because it might have acquired British citizenship from a parent who is British or who holds settlement.

The courts, which are sometimes faced with decisions about cases of these kinds, have consistently stated that the best interests of the child doctrine is not a "trump card" - a rather colloquial expression that has a clear meaning. It reflects the careful wording of the Convention: the best interests of the child are a major factor but not an overwhelmingly strong one.

As this principle might imply, some cases go one way and some another. In some cases the best interests of the child are sufficient to save the situation of the parent or parents who have no legal immigration status in the UK and the parent or parents thus acquire legal status on the basis of the child’s situation.

But in other cases things go the other way and the best interests of the child, although always a strong factor, cannot overcome strong countervailing factors pulling in the opposite direction.

In the case of "Ndidi v UK" in the European Court of Human Rights late last year the applicant was a Nigerian national who had come to the UK at a very young age and had acquired settlement some years previously (but he did not hold British citizenship).

He also had had a child with a British citizen - and thus we strongly imagine that the child was also a British citizen. But he had also acquired a very bad criminal record. The British courts had upheld the Home Office’s decision to deport him from the UK, despite his very strong family ties in the UK.

The European court accepted the view of the British courts: the deportation was held not to be disproportionate under human rights principles, because of the serious effect on British society of the applicant’s offending behaviour.

In another, very recent, case in the Court of Appeal of England and Wales called "Robinson (Jamaica)" something rather similar happened, but this time in the context of European Law. A European instrument called the EU Charter of Fundamental Rights closely reflects the UN Convention’s wording about the child’s best interests, and the applicant, who was faced with deportation, sought to rely on it because she had dependent children who were EU citizens. The Upper Immigration Tribunal had decided that she could rely on it but the Home Office appealed.

Here again the court said that the principle was not an absolute one, and that it had to be balanced against other factors. In this case there were also issues of criminality. The court sent the case back to the Upper Immigration Tribunal and instructed them to re-consider the case, on the basis of a correctly constituted balancing exercise.

There are without doubt some people who believe - and who are prepared to advise accordingly - that children can provide some sort of immigration "trump card" but, as we see, things are not so simple. If you are affected by issues of this kind you are well advised to take professional legal advice.

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