Best interests of children in immigration cases
Those working with migrant children have known this all along, but in March we had some official confirmation from a Parliamentary committee: the situation of migrant children in the UK is getting worse, not better:
While we welcome the reduction in the number of migrant children held in immigration detention, we are disappointed that so little other progress appears to have been made by the Government since we reported on the human rights of unaccompanied migrant children and young people in the UK back in June 2013. All the evidence we have received suggests that the treatment of child migrants is an area where, despite some improvements, if anything the situation has grown worse overall during this Parliament. The Home Office seems still to prioritise the need to control immigration over the best interests of the child. This is unsatisfactory. The Government must ensure that the best interests of the child are paramount in immigration matters and work with other departments to ensure that the needs such children are met and their rights safeguarded. The UNHCR evidence that guidance for Home Office and UKVI staff is not good enough and training patchy must be acted upon.
This is despite the ending of the UK’s shaming reservation from the UN Convention on the Rights of the Child and the enactment of section 55 of the Borders, Citizenship and Immigration Act 2009, which finally put migrant children on an equal footing with British citizen children.
Have the courts or immigration tribunal intervened? No, despite clear authority to do so from the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4. Rather, the courts and immigration tribunal have bent over backwards to give “respect” to the Government’s abandonment of its international legal commitments. The judicial notion of democracy seemingly attaches more weight to press releases by the Government of the day than to statute passed by Parliament.
This is perhaps starting to change in the Upper Tribunal, at least. In two recent cases the President of the Tribunal, Mr Justice McCloskey, has emphasised that section 55 does have force. Strangely, both are cases where the President has, yet again, chosen to give important reported determinations in cases where the appellant was unrepresented and therefore no legal submissions were heard from one side. It is almost as if the tribunal prefers its law without lawyers. Further, it in effect prevents an appeal on the issue in question by the appellants while it permits such an appeal by the Home Office. The practice introduces a clear risk of bias against appellant interests.
The first of these cases is JO and Others (section 55 duty) Nigeria  UKUT 517 (IAC). The headnote reads:
(1) The duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 requires the decision-maker to be properly informed of the position of a child affected by the discharge of an immigration etc function. Thus equipped, the decision maker must conduct a careful examination of all relevant information and factors.
(2) Being adequately informed and conducting a scrupulous analysis are elementary prerequisites to the inter-related tasks of identifying the child’s best interests and then balancing them with other material considerations.
(3) The question whether the duties imposed by section 55 have been duly performed in any given case will invariably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently be confined to the application or submission made to Secretary of State and the ultimate letter of decision.
The case restates the importance of the Home Office actually finding out about children whose lives will be profoundly affected by its decisions. The President raises the possibility that there might be a proactive duty on the Home Office to investigate but pulls back from making a decision either way.
JO was was followed last week by MK (section 55 – Tribunal options)  UKUT 223 (IAC). The headnote reads rather as if someone has Had A Word with the President and involves a considerable rowing back from the suggestion that there might be procedural obligations on the Home Office:
(i) Where it is contended that either of the duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 has been breached, the onus rests on the appellant and the civil standard of the balance of probabilities applies. There is no onus on the Secretary of State.
(ii) As regards the second of the statutory duties [the need to have regard to statutory guidance promulgated by the Secretary of State], it is not necessary for the decision letter to make specific reference to the statutory guidance.
(iii) The statutory guidance prescribes a series of factors and principles which case workers and decision makers must consider.
(iv) Where the Tribunal finds that there has been a breach of either of the section 55 duties, one of the options available is remittal to the Secretary of State for reconsideration and fresh decision.
(v) In considering the appropriate order, Tribunals should have regard to their adjournment and case management powers, together with the overriding objective. They will also take into account the facilities available to the Secretary of State under the statutory guidance, the desirability of finality and the undesirability of undue delay. If deciding not to remit the Tribunal must be satisfied that it is sufficiently equipped to make an adequate assessment of the best interests of any affected child.
In fact, reading the determination in full, it is far more nuanced. Where the tribunal has sufficient evidence about the impact on a child, the tribunal can simply get on with making a decision. The President politely suggests that the Court of Appeal case of SS (Nigeria) v SSHD  EWCA Civ 550 is not the whole story in cases where one of the section 55 duties has been breached by the Home Office and adequate information regarding a child is simply absent from the evidence before the tribunal. In such circumstances, the tribunal cannot simply get on with deciding the case. Procedure rule 4(3) includes a specific disclosure power to:
… permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party.
This rule could be used to require the Secretary of State, rather than the Tribunal, to perform the two duties imposed by section 55, the tribunal suggests. Alternatively, the appeal can be allowed on the basis that the decision was not in accordance with the law and the Home Office directed to comply with section 55 duties.
On the facts of the case, the tribunal decided to go ahead with its own assessment, finding that deportation of the appellant was disproportionate and unlawful because of the impact on his family.
Both the JO and MK decisions are welcome reminders that the duty to have regard to the welfare of all children is not an empty and unenforceable one, at least while section 55 remains on the statute book and Article 8 of the European Convention on Human Rights remains an enforceable right in the United Kingdom.