"It seems to me, however, that it is desirable that the issues raised in this case as to the applicability ofsection 55 of the Borders, Citizens, and Immigration Act 2009 (" the 2009 Act") and the Supreme Court's decision in ZH Tanzania[2011] UKSC 4 to non-appealable decisions by the Secretary of State which are then considered in judicial review proceedings in the Administrative Court should be considered together with the same issues as are raised in respect of appealable decisions and have gone on appeal to the Upper Tribunal in the cases of SP ( India) and EJ ( Nigeria)."
"It does seem to me desirable that the impact of section 55 of ZH should be considered across the board."
"In the case of EJ ( Nigeria) the Secretary of State has offered to grant some form of leave to the appellant "
“18. I have considered whether the proposed removal of the appellant would be an unlawful interference by a public authority with the exercise of the appellant’s right to respect for his family and/or private life. It is apparent that the Secretary of State’s decision will have consequences of some gravity for the appellant in terms of his family and private life not least because he will be required to leave his home in the UK and return [to] India. His son was born here and there would be inevitable disruption in the lives of the 3 family members who would be uprooted from their current home and neighbourhood.” 19. I have considered the appellant’s personal history and have noted that, according to [the] submission made in the solicitors letter, the appellant has business premises in India. It would appear from this that he has financial interest and family members in India. ... 25. I take into account the fact that the appellant is a citizen of India, as are all his closest family members. I also take into account the not unimportant fact that the appellant will not be separated from his wife and child as neither he nor his wife have leave to remain and the family, if removed from the UK would be removed altogether. His child is not old enough to attend school and there is no question of disruption of education. 26. Although the appellant may be used to life in the United Kingdom where he has lived for seven years, he lived for about 25 years in India before moving here. The reason for him being allowed to enter has long expired. He and his wife are used to the customs, language and social background of India. He appears to have had a business there and it would appear from this fact that he would be able to earn an income for his wife and son. 27. I take the view that the balancing exercise which I undertake must take into account the effect of the decision on the appellant in terms of the family and private life, as well as the desirability that the respondent should exercise immigration controls fairly and in accordance with the published immigration rules. In this case the application was made at a time when the appellant’s leave had long expired. His wife’s appeal is dependent on his and there is no question of them being separated. His child is of an age where education would not be disrupted and no strong ties have been established with anyone other than his parents. Importantly the appellant has not provided any evidence to the Tribunal in support of his claim. No compassionate grounds, health issues or domestic issues have been highlighted in support of this appeal. The respondent appears to have applied his own policy consistently and has given consideration to the factors set out in paragraph 395C when making the decision to refuse leave to remain.”
"Although he [ Immigration Judge Robinson in the First-Tier Tribunal] did not expressly refer to section 55..., in his analysis of Article 8 he considered the best interests of the Appellants’ child."
“The UK Border Agency must also act according to the following principles: Every child matters even if they are someone subject to immigration control. In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children. Ethnic identity, language, religion, faith, gender and disability are taken into account when working with a child and their family. Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children’s concerns. Children should have their applications dealt with in a timely way and that minimises the uncertainty that they may experience.”
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration "
“These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.”
“[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”
“This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.”
“As the UNHCR says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away.”
“Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as “a primary consideration”
"In our judgment the immigration judge in the present case reached a permissible conclusion by means of a properly structured appraisal of the evidence, informed by a correct understanding of the legal importance of a child's best interests."
“I do not accept that the failure of an inspector [in a planning appeal] to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form.”
“The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.”
“...did require an analysis of that material with the specific statutory considerations in mind. It does not, of course, follow that considerations raised by section 71(1) will be decisive in a particular case. The weight to be given to the requirements of the section is for the decision maker but it is necessary to have due regard to the needs specified in section 71(1). There was no analysis of the material before the council in the context of the duty.”
“26. Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life. Both principles are engaged in this case. 27. The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives. Previously Home 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 Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”
“This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.”