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Rights of children a primary consideration

Rights of children a primary consideration

Yet more good news, this time for children and their parents. In LD (Article 8 best interests of child) Zimbabwe [2010] UKUT 278 (IAC) the President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the UN Convention on the Rights of the Child is highly relevant to Article 8 ECHR. See paragraphs 27 and 28:

27. The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives.  PreviouslyHome Office policy tended to identify seven years of residence of a child as one that would presumptively require regularisation of immigration status of child and parents in the absence of compelling countervailing factors. That was really an administrative way of giving effect to the principle of the welfare of the child as a primary consideration in such cases and when it was considered that those interests normally required regularisation of the immigration position of the family as a whole. The policy may have been withdrawn but substantial residence as a child is a strong indication the judicial assessment of what the best interests of the child requires.  The UN Convention on the Rights of the Child 1989 Art 3 makes such interests a primary consideration.

28.   Although questions exist about the status of the UN Convention on the Rights of the Child in domestic law, we take the view that there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases.  A failure to treat them as such will violate Article 8(2) as incorporated directly into domestic law. [emphasis added]

The tribunal is also highly critical of the blase sounding approach of the (unidentified) Immigration Judge:

We therefore turn to consider the Immigration Judge’s reasoning on the question of proportionality. We confess we find it is wholly absent.  This is not a case about physical or mental illness of anybody, but whether the family life that had been enjoyed over eleven years with authority afforded to each member of the family should now be interfered with.  The Immigration Judge has wholly failed to grapple with this. We find his reference to maintain contact with his family ‘in the normal manner’ is extraordinary. Families normally live together. Family life consists of the inter-dependent bonds between spouses or stable partners and between parents and children with particular strength being placed upon the interests and welfare of minor children. It is not normal for family life to be enjoyed by correspondence and occasional visits (even assuming that there were no obstacles to such visits following this immigration decision). Although the Immigration Judge has cited the case as Beoku-Betts he appears singularly to have misunderstood the core principles to be applied in this area of the law, as exemplified by the other important House of Lords cases HuangEB (Kosovo) and numerous decisions in the Court of Appeal noted above as well as the decision in Chikwamba [2008] UKHL 40.

Not only that, but El Presidente underlines the importance of AA (Nigeria), re-emphasises that reasons do have to be put forward by UKBA for interference with a private and family life, and makes it clear that the weight to be attached to the consistent application of immigration control “depends on the context of the case, whether there was ever any claim under the rules for indefinite leave to remain, and why such claim was not accepted.”

More to follow on the rest of the sudden rush of cases.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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