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Building a case based on a child’s best interests: practical tips

Building a case based on a child’s best interests: practical tips

“Forcing me to leave the UK will not be in my child’s best interests” is a phrase often used by parents seeking to remain in the UK. Enny Choudhury has written an excellent briefing note on the body of law behind the phrase and the Home Office’s duty to consider the best interests of children in the UK affected by its decisions. This article tries to build on that by outlining how the law on best interests can be used in practice to support an immigration case.

When are a child’s best interests relevant in immigration law?

Those seeking leave to remain in the UK on human rights grounds might cite a child’s best interests as part of a wider proportionality argument under Article 8 of the European Convention on Human Rights. Others might rely on paragraph 276ADE(1)(iv) of the Immigration Rules to apply for leave on behalf of a child that has lived in the UK for at least seven years. Foreign criminals seeking to resist deportation may cite the child’s best interests in arguing that their deportation would be “unduly harsh” on the child. In some outcomes, the child will be forced to depart with the parent; in others, the child may be left behind without that parent (if for example the child is British and lives with the other parent). 

When looking to build a case based on a child’s best interests, it’s vital to bear in mind the particular legal test that will be applied to your client. Whether or not an outcome is or isn’t in the child’s best interests is not the relevant legal test. Consideration of the child’s best interests may be the starting point of the case, but it is certainly not the end point. 

The Home Office and the courts are perfectly entitled to consider a child’s best interests and then, after applying the relevant legal test to the immigration problem at hand, reach a conclusion which is not in the child’s best interests. It is not enough just to argue that a particular outcome will not be in a child’s best interests. You need to go one step further and relate the child’s best interests to the particular test that applies to your immigration case. In deportation cases especially, the legal test sets such a high bar that in many cases, even though the deportation clearly wouldn’t be in the child’s best interests, it nevertheless would be lawful because the extent of the impact fails to reach the high threshold. 

Notwithstanding the various different legal tests, all cases involving the best interests of a child have very similar threads running through them. This article is not particularised to one legal test, but rather contains a broad set of basic tips, which will need to be developed depending on the circumstances of each case. Treat the child’s best interests as a building block to lay the foundation of an argument based on proportionality, reasonableness or harshness, depending on your case.

Home Office assessment of a child’s best interests 

Non-lawyers may be surprised to learn that assessment of a child’s best interests by the Home Office rarely involves an interview or any human contact whatsoever with the parent or child, let alone with their teachers, social workers, doctors, ministers or other professionals involved in their development. How then can the Home Office discharge its legal obligations and understand what the effect of a decision would be on that child?

Put bluntly, it falls on the applicant to provide as much evidence as possible to support a claim that a particular outcome will or will not be in a child’s best interests. He who asserts must prove. It’s rarely enough just to aver.

How will the decision affect the child?

In cases dealing with the child’s best interests, it’s vital to identify what those interests are, and then show how they might be affected by a particular outcome.

There isn’t an exhaustive checklist of things to consider, but the focus should be on the child’s well-being and developmental needs. It can be helpful to start by exploring whether the child has any specific vulnerabilities and support needs: educational needs, emotional needs, medical needs or therapeutic needs. It can then be helpful to consider the child’s current family connections both in the UK and also in the country the child may be required to go to. For older children, it is important to also consider their social connections with friends and peers outside the family.

These factors can all then be considered against the parent’s capacity to meet them before and after the outcome of the immigration decision. You will also need to look at the child’s ability to adapt to leaving the UK, or to being separated from a parent if applicable. If the child is mature enough to be involved, you should seek and consider the child’s own views. 

Speak to the parents

The starting point will usually be to ask the parents about the child’s life in the UK, how they think the child will affected, and why. It can be useful to put the relevant legal test to the parents and ask their view (for example, “will it be unreasonable for the child to leave the UK?” or “will it be unduly harsh on the child if you are deported?”)

Initial answers are often stated in absolute and exaggerated terms. This isn’t the fault of the parents. It’s vital for the solicitor to help those parents better articulate, express and develop these initial thoughts. Compressing a child’s life into pithy-statement-worthy answers does not come naturally to most parents. Common first responses I’ve heard are:

  • It would be impossible for my child to fit into that country.
  • My child does not speak the language.
  • I will not be able to get a job to support my child in that country. It will be impossible for us to survive.
  • My child has asthma/eczema/allergies that will be aggravated by going to that country.

These types of assertions can be given short shrift by the Home Office. Typical responses include:

  • Your child was resilient enough to fit into the UK, therefore your child will be resilient enough to fit in when you return to your home country. 
  • You speak your country’s language at home so your child is already familiar with it.
  • Parents move country with their children for work and family reasons all the time. You were resourceful enough to get a job in the UK, a foreign country, so you will have no problem at all applying your valuable UK experience to getting a job in your home country. 
  • Medication and treatments for these conditions are readily available in your home country.

It’s important to consider the potential responses, and where appropriate put them to the client and seek clarification in order to better develop their answers.

Looking at each of the initial responses in turn, more detail can often be coaxed out of parents once they get talking. These are just examples I have made up, but typically, after establishing a rapport with the parents and spending some time talking with them, those initial answers can flourish into more coherent and credible points that can be advanced in your client’s favour.

For example, “it would be impossible for my child to fit in” can evolve into:

OK nothing is impossible, but it would be very upsetting for my child because my country imposes very strict cultural norms on girls there. My daughter has not been raised with those principles at home or at school here in the UK and it will be a very big shock to her trying to adapt now if we had to go there. She has been there a couple of times on holiday and had a very difficult time fitting in and making friends with local children. Although my daughter managed the move to the UK easily enough, she was only two years old at the time and was not developed enough to understand what was going on.

“My child does not speak the language” can become:

My husband and I speak English at home, despite it not being our first language. We made this choice early on in our son’s life to help him adapt to life in the UK and to ensure that he was able to manage at school here. Since going to primary school he has even started speaking with a local accent. We have taught him a few basic words in our native language, but we work such long hours and we are not teachers, so regrettably we haven’t had the opportunity to teach him the language or familiarise him with it. We hope to save up to send him to extra-curricular lessons when he is a bit older. If he went to that country now, he would struggle to understand anybody at school or make any friends, and we cannot afford to send him to an international English-speaking school.

“I will not be able to get a job to support my child” can become:

I work in a very niche profession and there is high unemployment in that sector in my home country. I don’t have sufficient skills or networks to easily find a job as I’ve been away for so long. I’ve spoken to a couple of recruitment companies and they have told me that it would be hard to place me in a suitable job. I have no savings and I am worried that my inability to provide for my family will be very damaging to us all. My parents have passed away and I have no siblings or friends to turn to for help. I know families move frequently, but when they move they have an employment opportunity or family to move to. In our case, we have nothing there and everything here.

“My child has asthma/eczema/allergies” can become:

My home country has a very hot and humid climate which triggers my child’s asthma. I know this because we visited last year and my child suffered severe asthma symptoms. While there is treatment available, my child’s quality of life will be diminished by the reliance on medication.

Support assertions with evidence

In addition to fleshing out the parents’ thoughts on the child’s interests, it’s important to substantiate them with evidence where possible. Evidence makes claims harder to dismiss and easier to litigate.

If the child has a social worker, the social worker can be invited to comment on the child’s home life and their perception of how the child’s progress may be affected. If the child has medical conditions, it’s not enough to just provide a prescription or appointment letter; get a medical report or doctor’s letter detailing what the conditions are, what treatment is required, and how the treatment might be affected by the relevant child or parent’s removal from the UK. If the child has special educational needs, it’s not enough just to stick in a school report; a teacher or education professional should be invited to provide commentary on what those needs are, how they are being fulfilled, and how they will be affected. This is not an exhaustive list but hopefully illustrates the need for commentary that goes beyond a statement of bare facts. 

Instruct an expert

For me, the key to overcoming a hardened caseworker’s glib dismissals has been obtaining expert commentary on the child from a child psychologist or independent social worker. Without expert opinion, you are left with just your client’s word against the Home Office’s. School reports, NHS appointment letters, prescriptions, birthday cards and photos demonstrating a child’s life in the UK are all nice but will rarely tilt the scales in your client’s favour without expert evidence.

Typically, one would instruct either a child psychologist or an independent social worker to assess the parent and child. The expert will then write a report addressing not just the child’s interests, but also the legal test relevant to the case, remembering that the relevant legal test may well be much more stringent than just a simple consideration of the child’s best interests. 

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The letter of instruction is critical. It is the lawyer’s job to guide the expert on their remit, their role in proceedings, the issues requiring commentary, and the legal tests that the Home Office or tribunal will be applying. If appropriate, it might be an idea to ask the expert to consider the child’s best interests and then separately to consider the relevant legal test. It’s too vague to just ask the expert to comment on whether removal will be in the child’s best interests and leave them to it.

Similarly, it’s not enough for an expert to just say “Here’s my CV, I’m an expert and I think removing this child from the UK will not be in the child’s best interests”. The expert needs to be told what tests will apply in the case, what the Home Office’s views are (if they are known), and what opinion or commentary is sought. The expert must then actually explain how they reached their conclusions and views. 

For further reading on instruction of expert witnesses and their role in proceedings, I can’t recommend the EIN chapter on experts highly enough. Although written in the context of asylum appeals, much of the guidance is equally applicable to human rights appeals in which the child’s best interests are invoked.

I acknowledge that not everyone has the means, time, or opportunity to instruct an expert. Where that isn’t possible, it becomes all the more important to spend time refining statements and considering alternative sources of evidence.

A real life example – Susan’s case

To illustrate the importance of expert evidence in a child’s best interests case, I’ll give a real life example.

A child who we will anonymise as ‘Susan’ was born in Bangladesh in 2007. In 2010, aged two years and eight months, she and her Bangladeshi parents lawfully migrated to the UK. Susan has since gone through nursery and primary school in Scotland. She has visited Bangladesh on just three occasions for short holidays since she came to the UK. Although English is not her parents’ first language, she has been raised speaking English at home and at school. She speaks with a Scottish accent.

In 2017, after completing seven years of continuous and lawful residence in the UK, Susan’s parents submitted an application on her behalf for leave to remain in the UK under paragraph 276ADE(1)(iv). To succeed, Susan was required to prove that it would be “unreasonable” to expect her to leave the UK. This was the relevant legal test. Considering her best interests is important but the end point of the consideration is really to establish whether she does or does not meet the legal test.

Susan was nine years and nine months old at this time. The parents’ then legal representative drafted a letter peppered with case law asserting that it would not be in Susan’s best interests to leave the UK. They included some basic evidence of Susan’s life in the UK such as recent school reports and medical appointment letters. 

Susan’s application was refused. Let’s see what the Home Office said:

You are under the age of 18, you have lived continuously in the UK for at least the last 7 years, but it would be reasonable for you to leave the UK. As you would be returning to Bangladesh with your parents and sibling as part of a family unit, who would be able to support you are sibling as you re-adjusted to life in Bangladesh. No evidence has been provided to indicate that your parents would be unable to protect and support you upon your return. It has been raised that you have limited knowledge of the Bengali language. However it is noted that you spent 2 years and 8 months living there before entering the UK, both of your parents are Bangladeshi Citizens, and you have returned to Bangladesh with your parents on several occasions. Therefore it is considered that you have a knowledge of the language, customs and culture present in Bangladesh. Consequently you fail to meet the requirements of paragraph 276ADE(1)(iv) of the Immigration Rules.

There’s a lot wrong with the paragraph above. There is little engagement with the idea of “reasonableness”. But what, aside from a bare set of facts, did the decision-maker actually have to work with? You may say, why didn’t the decision-maker call the parents to speak to them about the child or to ask for more evidence? For good or for ill, that’s simply not how decision-making works on such cases. A civil servant is tasked with looking at the application form along with the evidence supplied, and reaching a conclusion.

In Susan’s case, in order to rebut some of the points made above and to substantiate our arguments, I instructed a child psychologist to meet with Susan and her parents and write an expert report for presentation to the Home Office, So long as the person instructed is suitably qualified to assess the child and respond to your letter of instruction, it doesn’t matter whether they are a psychologist or a social worker.

In Susan’s case, the expert interviewed the child’s teachers and provided summaries of those interviews, followed by analysis, followed by conclusions. The following three paragraphs are excerpted from the concluding section of the report:

‘Susan’ lived in Bangladesh with her family until she was over two years of age. A child’s development for the first three years of life entails her being with a parent most of the time. A child begins to explore her environment without parental supervision at the nursery school stage. This independence increases through primary school and into secondary school at the adolescent stage.

This developmental pattern may not have occurred if her parents had brought her up in a very restricted environment where she was exposed to the Bangladeshi culture as much as possible and a childhood similar to that of her parents, imposed upon her. This scenario has not occurred and as a result she is indistinguishable from her Scottish peers in all major and indeed minor respects… ‘Susan’ is hence, as mentioned above, a Scottish child with some knowledge which is not of great significance of her parents’ background.

From the point of view of a psychologist, it would not be reasonable to return ‘Susan’ to Bangladesh. She is, as mentioned above, in all respects, a typical Scottish girl of her age. She would be affected educationally and socially by being returned to Bangladesh. She has spent all her significant developmental and educational life in Britain.  She has no interest, like her peers, in living in Bangladesh. It would be unreasonable to send any Scottish girl to Bangladesh given the same circumstances. A relocation to Bangladesh would have severe disadvantages for ‘Susan.’

Armed with this report and significantly beefed-up statements from the parents narrating the reasons why they believe it would be unreasonable to expect their daughter to leave the UK, we were successful in obtaining a grant of leave for Susan under paragraph 276ADE(1)(iv). We also secured grants of leave for her parents and sibling outside the Immigration Rules in recognition of the fact that refusal to grant them leave would result in Susan being forced to leave the UK. 

Summary

  1. Establish what the child’s interests actually are and how the child will be impacted by the outcome of the immigration decision.
  2. Establish what the relevant legal test is.
  3. Prove with evidence:
    1. what the effect on the child will be, and 
    2. how that effect fits against the relevant legal test.

Now read: the best interests of children in immigration cases.

John Vassiliou is a specialist UK immigration and nationality solicitor at Shepherd and Wedderburn (https://shepwedd.com/people/john-vassiliou). You can email John with professional enquiries at john.vassiliou@shepwedd.com and you can follow John on Twitter @john_vassiliou1