Case Note by Helena Wray, EUDO CITIZENSHIP UK expert
ZH (Tanzania) v SSHD [2011] UKSC 4
This British Supreme Court decision, handed down on 1st February 2011, concerned the weight to be given to a citizen child’s best interests when considering the removal or deportation of a non-citizen parent. In such instances, when the parent is removed, the child is effectively also ‘constructively’ removed if they cannot remain in the UK without their parent.
Here, the mother was a failed asylum seeker who had made three claims, two under false identities. The children were British citizens through their father who was in poor health. In reality, if the mother left the UK, the children would go with her. The children, who were 12 and 9 at the time of the judgment, had lived all their lives in the UK with their mother, attending local schools. They had regular contact with their father.
By the time of the Supreme Court hearing the government had accepted that it would be disproportionate to remove the children’s mother in the circumstances. However, the court was asked to rule on the general principles to be applied.
In her lead judgment, Lady Hale considered the obligations of the UK to the children under article 8 ECHR and the United Nations Convention on the Rights of the Child. The UK withdrew its immigration reservation to the Convention in 2008. Under S.55 Borders, Citizenship and Immigration Act 2009, immigration functions must be discharged ‘having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom’. This is an arguably incomplete enactment of the obligation contained in article 3 of the Convention to ensure that ‘the best interests of the child shall be a primary consideration’. It now represents the legal standard that must be applied both substantially and procedurally to decisions involving children if a decision is to be ‘in accordance with the law’ for the purposes of article 8(2) ECHR. Nonetheless, to ’promote the welfare of’ children or even to make their interests ‘a primary consideration’ are not synonymous with making children’s welfare ‘the primary’ or ‘the paramount’ consideration, which is the test to be applied in determining a child’s upbringing in domestic law. In not all circumstances, will children’s welfare trump other imperatives. Provided that no other consideration is regarded as inherently more significant than the best interests of the children, the strength of those other considerations may outweigh them. However, the child’s interests must be considered first.
Applying these principles, Lady Hale found that, although nationality is not a ‘trump card’, it is of particular importance in assessing the best interests of a child. In this case, citizenship was not an incidental characteristic. The children had exercised their right of abode in the UK throughout their lives. She went on to say (at para. 32): ‘Nor should the intrinsic importance of citizenship be played down.’ Citizenship is more than a formal right but enables access to culture, education and language, all of which would be lost if children cannot exercise their citizenship rights until they are adults. She quotes Jacqueline Bhabha:
‘In short, the fact of belonging to a country fundamentally affects the manner of exercise of a child’s family and private life, during childhood and well beyond. Yet children, particularly young children, are often considered parcels that are easily movable across borders with their parents and without particular cost to the children.’
The rest of the court agreed with Lady Hale. They endorsed the view that a child’s nationality is more than a formal legal right and it will normally be in a child’s best interests to exercise that right. That the parents’ behaviour might have been reprehensible or cynical could not be used to devalue the child’s own interests. Although their Lordships were careful to maintain that the child’s best interests would not always be decisive, given this language, it is far from clear what degree of parental wrongdoing would justify overriding a child’s citizenship rights if the outcome would be the child’s enforced departure from the UK.