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Statutory human rights considerations apply to child and adult alike

The tribunal has held, inevitably, that the statutory human rights considerations apply to children as well as adults, although other considerations must also be taken into account:

(i) In section 117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002 parliament has made no distinction between adult and child immigrants.

(ii) The factors set out at section 117B(1)-(5) apply to all, regardless of age. They are not however an exhaustive list, and all other relevant factors must also be weighed in the balance.  These may include age, vulnerability and immaturity.

(iii) The juridical status of the relevant Home Office ‘Immigration Directorate Instructions’ must be appreciated. While these are subservient to primary and secondary legislation and the Immigration Rules, they rank as a relevant consideration, framed in flexible terms, to be taken into account by decision makers in every case where they apply.

As the President says:

While the impact of sections 117B (1)-(5) on children will appear harsh and unfair to many, this is the unavoidable consequence of the legislative choice which Parliament has made.

I am not sure that President McCloskey’s approach to the statutory considerations here and in the earlier case of Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) is correct. Section 117A imposes a duty on judges to “have regard” to sections 117B and 117C: this is Parliament’s instruction. It is true that sections 117B and 117C then go on to use directive language, but to apply that slavishly seems to ignore the duty merely to “have regard” at section 117A. The words “must apply” or similar were not used by Parliament.

The President in this decision is also rather critical of the contents of the Home Office Immigration Directorate Instructions on family life: see paragraphs 16 and 17:

16. Decision makers and Judges should take care to apply the correct prism when considering this IDI. Its legal status must be appreciated. It is not a statutory measure. It is, rather, a policy document. Being of this character, it attracts the application of a series of well established principles, four in particular. First, it is an obligatory material consideration in decision making processes. Second, it is not writ in stone. Rather, its contents are to be viewed as a series of flexible and inexhaustive requirements. See Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, at [21], [26] and [35], per Lord Dyson JSC. We would further emphasise that the IDI is not, and does not claim to be, an exhaustive code. To approach it as a collection of rigid rules and/or a comprehensive edict would be erroneous in law. Finally, it is trite law that IDI’s and kindred instruments do not have the status of law and, thus, are subservient to primary legislation, secondary legislation and the Immigration Rules.

17. We also draw attention to two particular features of the text of the IDI, highlighted above. The first is the passage dealing with ” original, independent and verifiable documentary evidence“. We consider that this is to be applied with caution. Decision makers and Judges should be alert to the entire context, including relevant social and cultural factors, with their eyes firmly focused on the realities of life. Furthermore, the instruction to decision makers that they ” must place less weight on assertions which are unsubstantiated” is equally troubling, as it neglects two truisms. The first is that, in certain cases, assertions may not be capable of being substantiated. The second is that the applicant may be able to satisfactorily explain the absence of substantiation in respect of matters which one would expect to be substantiated. The final aspect of the IDI worthy of comment is its tendency to highlight individual considerations in isolation, detached from other factors. We would emphasise that the public law duty engaged is to take into account all material considerations, weighing them in the round. In this context, we record that, in response to a question from the bench, it was acknowledged on behalf of the Secretary of State that the age, gender, educational achievements and linguistic abilities of the person concerned are (inexhaustively) all material considerations.

Source: Miah (section 117B NIAA 2002 – children) [2016] UKUT 131 (IAC) (23 November 2015)

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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