The Secretary of State for the Home Department v MK

1. The respondent [hereafter “the claimant”] is a citizen of India. On 22 June 2004 he applied in Mumbai for entry clearance as a visitor to the UK for just one week, to be accompanied by his wife and daughter, H. They were subsequently granted six months’ leave as visitors arriving in the UK on 25 August 2004. They did not leave the UK by the date their leave expired but overstayed. On 9 September 2005 the claimant's wife gave birth to their second daughter, T. On 30 April 2009 the claimant applied for indefinite leave to remain. On 8 July 2010 and then again on 21 January 2011 the appellant, the Secretary of State (hereafter “the SSHD”) refused that application. The claimant appealed. In a determination notified on 8 April 2011 the First-tier Tribunal (Immigration Judge Hedworth) decided to allow his appeal on Article 8 ECHR grounds. The SSHD was successful in obtaining a grant of permission to appeal, bringing the matter before us.

2. The judge’s reasons for allowing the appeal are set out at paragraphs 35-59. At paras 35-44 he explained why he considered the parents to have a poor immigration history and why he considered that they could re-establish their life in India at a reasonable standard of living. At para 44 he turned to the issue of the children’s best interests in the light of the guidance given in LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC) and in ZH (Tanzania ) [2011] UKSC 4 . At para 51 he stated that the youngest child, T, would have no difficulty in readjusting to life and school in India. At para 53 he found that the claimant’s children would have access to good education in India and that it was “frankly unlikely” that they knew little or no Gujerati but in any event there would be no linguistic barriers for them in India. Having at para 52 given his own assessment of H as a “bright, enthusiastic girl, well-liked in school and an asset to it” and in para 54 having noted the contents of H’s own letter to the court, he then turned to the letter of 16 March 2011 from the head teacher of H’s primary school and to the family GP’s letter of 24 February 2011. At paras 56-59 the judge stated: “56. I bear in mind that both these men are professionals and therefore do not and can not lightly set aside their views. Both may be said to have the parent’s interests at heart too as much as those of the children. But the reality is that both men who have known [H] for a long time fear that her best interests would not be served if she was taken out of the system and life in which she has now become imbedded. [The head teacher] uses the words 'highly detrimental’, Dr Sinha ‘very detrimental’, when referring to the education and development of [H] and her sister.

57. My reluctance not to immediately adopt the view that removal of [H] would be detrimental is perhaps tainted by what I find with regard to her parents’ immigration history and behaviour. But this innocent child cannot be held responsible. To some extent the delay by the respondent in processing the application made in April 2009 does not help either.

58. I answer the first four questions framed in Razgar in the positive. The ultimate question is proportionality. With some hesitation, which I must resolve in favour of the best interests of [H], I find on balance that it would be disproportionate for [H] to have to leave the UK as a consequence of her parents and her younger sister being removed in order that the Secretary of State's legitimate prerogative and right to regulate and control immigration to the UK be maintained and achieved.

59. The UK would be in breach of its obligations under Article 8 (private life) with respect to H] if she was removed at this time. Her situation and circumstances of family life under Article 8 would be breached if her parents and younger sister were removed. The realty is that [H’s] father, the appellant, and mother both with a deceitful and dreadful immigration history benefit from their daughter’s Article 8 rights to private life.”

3. The SSHD’s grounds of appeal contended that the judge had failed to show he considered the significance for his assessment of the best interests of the child of his finding that none of the family were lawfully settled or are British citizens; the fact that there would be no linguistic barriers to the children obtaining education in India; the fact that he had found the claimant and his wife would have no difficulty in re-establishing their family life in India; and the fact that their youngest daughter would have no problem in re-adjusting to life and school in India. In addition it was submitted that in attaching great weight to the assessments by H’s head teacher and GP that it would seriously disrupt her education in the UK if she were required to return to India, the judge had failed to take into account that the right to education under Protocol 1 of the ECHR is a qualified right or to factor in his own acceptance that the Indian education system was good. It was also argued that in conducting the proportionality exercise the judge had failed to weigh in the balance the claimant’s “appalling immigration history”.

4. In advance of the hearing the claimant's solicitors submitted further documents including further letters from H’s head teacher, dated 21 July 2011 and 20 October 2011 respectively, a letter from the head teacher of T’s school and school reports for 2010/2011 for both H and T.

5. At the hearing Ms White did not call any oral evidence but submitted a skeleton argument.

6. The crux of Ms Tanner’s submissions for the SSHD was that the judge had erred in treating the eldest child’s educational circumstances in the UK as effectively a “trump card” when deciding the Article 8 claim. So far as the likely position of the claimant and his family on return to India was concerned, they were a middle class family, there was no suggestion that the two children would not receive a good education in India: language was not a problem. As regards the judge’s finding about disruption to H’s education, he had failed to explain why the disruption would be detrimental to her educational development. The contents of the eldest child’s private life in this case was essentially confined to school activities and friends made in or through school. H was not yet a teenager with a developed social life outside school or family. Although she had lived here six years, she had spent her first five years in India. The judge had erred by failing to attach weight to the fact that the claimant and his family were neither in the UK with lawful permission nor British citizens.

7. In amplifying her skeleton argument Ms White for the claimant submitted that the judge had not made any material error. His reasoning was consistent with the principles outlined by the Tribunal in E-A (Nigeria) [2011] UKUT 315 (IAC) . He had looked at the evidence as a whole. He had conducted a fact sensitive enquiry and in relation to H was clearly impressed by the fact that she was a very bright child who had benefited enormously from her UK education. He had properly attached weight to the two reports on H by her head teacher and GP. It was open to the judge to find that it would be detrimental to uproot her “from the system and life in which she has now become embedded”. The judge had applied the guidance given by the Supreme Court in ZH (Tanzania ) and by the Tribunal in LD . In EM (Zimbabwe) CG [2011] UKUT 98 (IAC) at paragraph 308(vi) the Tribunal had made clear that the key ZH (Tanzania ) principles applied even when there was no British citizen or settled person involved. Contrary to the SSHD’s assertion, the judge had not treated the best interests of the child as “the” as opposed to “a” primary consideration. The judge had clearly ascribed negative weight to the claimant’s “appalling immigration history”. The judge had addressed the significance of the known facts about the Indian education system and had carefully refused to consider there would be any linguistic obstacles to the two children continuing their education in India. The judge was also careful to differentiate between the situation of the two children, clearly regarding the elder child’s greater maturity as making a significant difference. By identifying a serious disruption in the oldest child’s education the judge made plain he meant her being uprooted from her current schooling.

8. In her skeleton argument Ms White said that the judge submitted, inter alia, that the oldest child’s best interests pointed one way, that other factors pointed the other but that balancing “one against the other he came down in favour of her best interests”. In sum, Ms White submitted, the SSHD’s grounds were a complaint about respective weight the judge attached to various factors whereas matters of weight were for the judge.

9. The panel asked Ms White what it was to make of the fact that one of the two professionals whose opinion the judge appeared to rely on, namely the family GP and Dr Sinha, had appeared, at least in part, to attribute the likely detrimental effect on the two girls’ studies if they were returned to India to the claimant's family having come to the UK to escape “enormous family strife” and “very hostile and confrontational relationships with their families in India.” In his determination the judge had found that the claimant’s claims about such family hostilities to be without foundation. She submitted that the judge had based himself first on the head teacher’s reports and so the doctor’s letter was not the only source and it was only one of many things he weighed in the balance. There was no reason to think that the judge had failed to differentiate between what Dr Sinha attributed to family strife and what he saw as the children’s best interests. The judge’s assessment stood independently of the doctor’s concern about family strife.

10. The panel also asked Ms White to identify what the judge considered to be the factors relevant to the best interests of the child assessment and whether he had shown he had made an “overall assessment” in line with the guidance given in ZH (Tanzania ). Had the judge reduced almost everything to the factor of educational disruption? Ms White replied that it would be wrong to demand of a judge’s determination a formal structured approach; one had to look at the determination as a whole, not just the last two paragraphs. It was sufficiently clear that the judge had considered in the round a range of factors when making the best interests of the child assessment and in the case of the eldest child, “education” was in fact a broad umbrella covering not just her schooling but her social ties with fellow pupils and outside groups. The judge had rightly focussed in H’s development of her own personality and identity: H was a gifted child. The determination was not perverse or otherwise flawed in law.

11. We asked the parties to address us on their respective positions in the event that we decided the judge had materially erred in law. Ms Tanner asked us to proceed to re-make the decision and dismiss the appeal. A proper assessment of the best interests of the child and consideration of the Article 8 proportionality assessment pointed strongly to dismissal of the appeal. It appeared the children had grandparents in India. The further elapse of time since the judge had heard the appeal in March did not significantly impact on the Article 8 assessment. The seven years policy was no longer in existence.

12. Ms White urged us to take cognisance of the further documentary evidence relating to both children’s schooling and excellent educational progress and to find that to consider removing the family now, when both children were embarking on a new school year was plainly disproportionate, especially given that the judge had found in March that their appeal had been successful and they had got on with their lives on that basis. Relevant cases

13. In deciding this case we have been greatly assisted by a number of recent decisions. The most important is the Supreme Court judgment in ZH (Tanzania ) [2011] UKSC 4 published on 1 February 2011. Other decisions include: Lee v SSHD [2011] EWCA Civ 348 ; SSHD v Rahman [2011] EWCA Civ 814 ; MD (Ivory Coast ) [2011] EWCA Civ 989 ; AJ (India) and others v SSHD [2011] EWCA Civ 1191 ; and a number of Tribunal decisions including LD (Article 8 best interests of the child) Zimbabwe [2010] UKUT 278 (IAC) ; EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) , and E-A (Article 8–best interests of child) Nigeria [2011] UKUT 00315(IAC. We have also looked at R (on the application of TS) v SSHD [2010] EWHC 2614 (Admin) 26 October 2010) and Tinizaray, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin) . We also take account, as we are obliged to do by s.2 of the Human Rights Act, of Strasbourg jurisprudence dealing with best interests of the child questions in the context of expulsion and exclusion cases; in particular Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010 and Case of Nunez v Norway no.55597/09 [2011] ECHR 1047 (28 June 2011). This is not an exhaustive list and in the nature of the subject-matter it is likely there will be new cases relatively frequently.

14. In AJ (India ), which reflects the Court of Appeal’s most recent analysis of the subject, Pill LJ wrote: “43. Before expressing final conclusions I make the following general comments, in addition to those made in paragraphs above. (a) As Baroness Hale stated at paragraph 33 in ZH , consideration of the welfare of the children is an integral part of the Article 8 assessment. It is not something apart from it. In making that assessment a primary consideration is the best interests of the child. (b) The absence of a reference to section 55(1) is not fatal to a decision. What matters is the substance of the attention given to the "overall wellbeing" (Baroness Hale) of the child. (c) The welfare of children was a factor in Article 8 decisions prior to the enactment of section 55. What section 55 and the guidelines do, following Article 3 of UNCRC, is to highlight the need to have regard to the welfare and interests of children when taking decisions such as the present. In an overall assessment the best interests of the child are a primary consideration. (d) The primacy of the interests of the child falls to be considered in the context of the particular family circumstances, as well as the need to maintain immigration control.

1. The facts in the present case were considered by the Immigration Judge, in a manner whereby he was treating the best interests of the child as a primary consideration. D's age was such that there could be no consultation with him, as required in the guidance with older children, nor are other considerations suggested to be relevant. It is not suggested that there are medical or other needs which point towards continued residence in the United Kingdom. “

15. In LD (a case predating ZH (Tanzania) but cited with approval in AJ (India )) Blake J referred to Article 3 of the UNCRC and also stated in paragraph 26: "26. Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life. Both principles are engaged in this case.”

16. In EM the Tribunal wrote at para 308(vi): “Even where neither the children nor the parents has the status of a British citizen, the welfare of the children is a primary consideration in administrative action affecting their future and accordingly the balance of competing interests under Article 8 must reflect this factor as a consideration of the first order, albeit not the only one (see LD … and ZH (Tanzania ) ….”). At para 308(viii), in the context of considering the Article 8 proportionality assessment, the Tribunal added that: “In the absence of any other policy guidance from the Secretary of State, it remains legitimate for Immigration Judges to give some regard to the previous policy that seven years residence by a child under 18 would afford a basis for regularising the position of the child and parent in the absence of conduct reasons to the country, in making a judicial assessment of whether removal is proportionate to the legitimate aim having regard to the best interests of the child.”

17. In E-A (Article 8 –best interests of child) Nigeria [2011] UKUT 00315(IAC) the head note to the decision states: (i) The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life. (ii) Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case. (iii) During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian. Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well-being. (iv) Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return. (v) The Supreme Court in ZH (Tanzania ) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own. Legal principles: best interests of the child

18. At this juncture we need to clarify several points concerning cases involving best interests of the child consideration/assessment in the context of Article 8 expulsion cases. The jurisprudence of the European Court of Human Rights (ECtHR) has long treated the best interests of the child as a primary consideration in the assessment of proportionality, but the UK's lifting in 2008 of its general reservation relating to immigration matters under the UN Convention on the Rights of the Child (UNCRC), the coming into force of s.55 of the 2009 Act, the guidance given by the Supreme Court in ZH (Tanzania ) and the Court of Appeal in AJ ( India ) have combined to lend the principle more prominence in our country; and courts and tribunals are perhaps only at the beginning of mapping in more detail its consequences for different types of immigration situations involving children and expulsion measures. That said, in addition to the guidance already to hand, it is possible to identify several matters of principle.

19. First of all it is clear from the judgments of their lordships in ZH (Tanzania ) (Lords Hope, Brown, Mance and Kerr expressing full agreement with the reasoning of Baroness Hale) that whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), i t is a matter which has to be addressed first and as a distinct stage of the inquiry. The decision maker has first to make a decision on what is in the overall best interests of the child and only then to assess whether those interests are outweighed by countervailing factors such as those concerned with the rights and freedoms of others, the effective maintenance of immigration control, prevention of crime, etc (Baroness Hale, para 33, Lord Hope, para 44, Lord Kerr para 46). The underlying rationale must be that unless, when children are concerned, the Article 8 proportionality assessment is conducted in this way there is a risk of the best interests of the child consideration wrongly taking into account extraneous factors such as the parents’ poor immigration history.

20. Second, whilst an important part of ascertaining what are the best interests of the child is to seek to discover the child’s own views, these being given due weight in accordance with the age and maturity of the child (Article 12 UNCRC), this notion is not a purely subjective one and the decision-maker has to come to an objective view as to what it is reasonable to expect of a child (Baroness Hale, paras 29, 34); This is reflected in the UKBA statutory guidance (cited in AJ (India ) at para 16) that “Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree…”. The need for an objective approach arises not simply because a child’s interests will not always be the same as their parent(s), but also because the consideration of their best interests requires a judgement to be made on a rational basis taking into account all relevant factors and not just on the basis of how these matters are perceived by the child and/or parent(s).

21. Third, the initial stage - the best interests of the child consideration - is not to be approached as a simplistic or reductionist exercise. Baroness Hale refers approvingly to the position taken by the UNHCR in para 1.1 of its Guidelines on Determining the Best Interests of the Child (May 2008) that “[t]he term ‘best interests’ broadly describes the well-being of the child”. Para 1.1 goes on to state that “such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences”. In this UNHCR document and other sources on which it draws, the best interests of the child consideration is to be seen to require a broad-ranging inquiry and to encompass multifarious factors including the child's need for security, continuity of care and affection and the opportunity to form long term attachments based on mutual trust and respect. As stated by the same UNHCR Guidelines at para 3, “[t]he result of the best interest of the child determination must take account of the full range of the child’s rights, and hence consider a variety of factors. The best interests of the child are rarely determined by a single, overriding factor”. We are aware there have been suggestions that decision-makers might benefit from a checklist relating to the welfare of the child akin to that family court judges are required to take into account under s.1(3) of the Children Act 1989 . However, it seems to us that the guidance given in ZH (Tanzania ) has already accomplished the task of identifying the factors which require particular attention in cases in which children are affected by expulsion measures. At para 29 Baroness Hale says this about best interests of the child consideration in the immigration expulsion context: “Applying, therefore, the approach in Wan [ Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568] to the assessment of proportionality under Article 8(2), together with the factors identified in Strasbourg, what is encompassed in the "best interests of the child"? As the UNHCR says, it broadly means the well-being of the child. Specifically as Lord Bingham indicated in EB (Kosovo ), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country, where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which will be severed if the child must move away."

22. At para 30 Baroness Hale adopts the identification in Wan of the following matters as relevant: the intrinsic importance of citizenship of the host country (where the child has this) and its connection with lifestyle; the degree of social and linguistic disruption of children's childhood as well as loss of homeland; the loss of educational opportunities; resultant isolation from the normal contacts of children with their other parent and that other parent's family. She sees these considerations as particularly important "in assessing the overall well-being of the child", as does Lord Hope who refers at para 40 to the “overall assessment of what was in the child’s best interests”.

23. There is in our view a fourth point of principle that can be inferred from the Supreme Court’s judgments in ZH (Tanzania ). As the use by Baroness Hale and Lord Hope of the adjective "overall" makes clear, the consideration of the best interests of the child involves a weighing up of various factors. Although the conclusion of the best interests of the child consideration must of course provide a yes or no answer to the question, "Is it in the best interests of the child for the child and/or the parent(s) facing expulsion/deportation to remain in the United Kingdom?"', the assessment cannot be reduced to that. Key features of the best interests of the child consideration and its overall balancing of factors, especially those which count for and against an expulsion decision, must be kept in mind when turning to the wider proportionality assessment of whether or not the factors relating to the importance of maintaining immigration control etc. cumulatively reinforce or outweigh the best interests of the child, depending on what they have been found to be.

24. The need to keep in mind the "overall" factors making up the best interests of the child consideration must not be downplayed. Failure to do so may give rise to an error of law although, as AJ (India ) makes clear, what matters is not so much the form of the inquiry but rather whether there has been substantive consideration of the best interests of the child. The consideration must always be fact-sensitive and depending on its workings-out will affect the Article 8(2) proportionality assessment in different ways. If, for example, all the factors weighed in the best interests of the child consideration point overwhelmingly in favour of the child and/or relevant parent(s) remaining in the UK, that is very likely to mean that only very strong countervailing factors can outweigh it. If, at the other extreme, all the factors of relevance to the best interests of the child consideration (save for the child's and/or parent(s) own claim that they want to remain) point overwhelmingly to the child's interests being best served by him returning with his parent(s) to his country of origin ( or to one of his parents being expelled leaving him to remain living here), then very little by way of countervailing considerations to do with immigration control etc. may be necessary in order for the conclusion to be drawn that the decision appealed against was and is proportionate.

25. We would add a further point, in the light of Ms White’s reliance on EM (Zimbabwe). Her submission sought to argue that the Tribunal had made clear in that case that British citizenship and issues of leave to remain in the UK were not relevant to the best interests of the child consideration. We do not understand the Tribunal in EM to be enunciating any such proposition. Rather they seek to remind the reader that such factors do not negate the need for a best interests of the child consideration. Whilst ZH (Tanzania ) makes clear that factors relating to immigration control are extraneous to such an assessment and whilst factors relating to citizenship and stay are clearly relevant to immigration control, the attributes of citizenship (in this case Indian citizenship) and permission to stay (in this case wholly lacking) may well be relevant to assessment of the best interests of the child as well. Thus in the claimant’s case the fact that he and the children are Indian citizens demonstrates that they have another country to go to and one in which, absent special circumstances, they can legitimately expect to enjoy the benefits of that country’s citizenship. As regards permission to stay in the UK or lack of it, the fact that a parent or child has had lawful permission to remain in the UK may well be relevant in assessing the extent to which the parent and/or child is to be regarded as integrated. Care needs to be taken to ensure that consideration of such factors is not elided with concerns about the public interest in the maintenance of effective immigration control, but it is quite clear from leading cases, including ZH(Tanzania ), that factors such as citizenship and immigration status can sometimes strengthen, sometimes weaken, the argument that the best interests of the child lie in remaining in the UK. That indeed appears to be at the heart of Pill LJ’s assessment of the appellant SP in the AJ (India ) case at para 41: “The facts in the present case were very different from those in ZH . The child was two years old at the time of the decision. He had not started school or formed ties with anyone other than his parents. He had no leave to remain in the UK nor was her or his parents of UK citizenship. He would be moving with his parents to a country with which his parents were familiar. His best interests would clearly be served by remaining with his parents wherever they may be.”