Tinizaray, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin)

[2011] EWHC 1850 (Admin)

Case No CO/15561/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/10/2011

Before

HH Judge Anthony Thornton QC

Between

The Queen on the application of Zaira Maibel Salvador TinizarayClaimant

Secretary of State for the Home DepartmentDefendant

Mr Jacques M. René (instructed by Thoree & Co) for Claimant

Mr Matthew Barnes (instructed by The Treasury Solicitor) for Defendant

Judgment

[1]Ms Zaira Tinizaray (“Zaira”) seeks judicial review of the defendant’s decisions made in letters dated 3 September 2009, 9 December 2009, 16 June 2010 and 3 March 2011. In each decision, the defendant refused Ms Tiniazaray’s application to grant her, and both her mother Ms Vicenta Tinizaray (“Vicenta”) and her nine-year old daughter Angeles Salvador (“Angeles”) as her dependants, indefinite leave to remain. The principal ground on which judicial review is sought is that the defendant, in taking these decisions, did not pay due regard to Angeles’s welfare. In consequence, it is contended that these decisions failed to give effect to the legitimate expectations of each family member and to their protected rights under

article 8 of the European Convention on Human Rights

. The case, therefore, raises the question of the application of Section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”) and of the decision of the Supreme Court in ZH (Tanzania)

[2011] UKSC 4

[2]These three family members are Ecuadorian nationals. Zaira, then aged 20, and Vicenta, then aged 54, arrived in the United Kingdom from Ecuador illegally as economic migrants on 8 August 2001. They avoided contact with any Immigration Officer on arrival and have avoided any contact with any official of the UK Border Agency, HM Revenue and Customs or other Government Department or Agency, social services or the Police and prosecution authorities ever since. Zaira was pregnant on arrival and she gave birth to Angeles on 1 May 2002. All that is known about Angeles’s father is that he is an Ecuadorian national who had had little contact with Zaira before she left Ecuador, is believed to have remained in Ecuador after she left, has had no contact with Zaira since late 2001 and has never had any contact with Angeles since she was born. Zaira’s evidence is to the effect that she has never claimed benefits of any kind in the United Kingdom and, it is to be inferred, neither has Vicenta.

[3]The application that led to the decisions being challenged was made by Zaira. In it, she applied for indefinite leave to remain on a Version 11/2008 SET(O) form dated 18 December 2008, naming both Vicenta and Angeles as her dependants. The application was accompanied by representations set out in a letter addressed to the Leave to Remain Section of the defendant’s Immigration and Nationality Directorate that was also dated 18 December 2008. The representations referred to the so-called seven year child concession, a discretionary policy (DP5/96) introduced by the defendant in March 1996 and amended in February 1999. This policy was withdrawn on 9 December 2008. The policy provided that it would not normally be appropriate to proceed with the deportation or removal of parents who were illegally in the United Kingdom in those cases where their child or children had resided in the United Kingdom for more than seven years. In such cases, consideration would be given to regularising the stay of the family who would not be left in limbo. The defendant announced, when withdrawing the policy, that:

“The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights and the Immigration Rules.”

Ministerial Statement of the Minister for Borders and Immigration (Mr Phil Woolas), Mansard 9 December 2008, Column 50WS. The representations suggested that the application should be considered in the light of the spirit of DP5/96 and that, in any case, Zaira had rights to remain that were protected by

article 8 of the ECHR

since there were compelling reasons why Angeles should be allowed to remain given that she had lived all her life in the UK and both considered the UK as their home. Similar claims were made on behalf of Vicenta who was described as being part of the family unit.

[4]This application was refused by the defendant in a letter dated 3 September 2009. The letter made it clear that the application could not be considered by reference to the withdrawn policy DP5/96, a position that, on behalf of Zaira, is now accepted to be correct. The decision contended that the family’s connection with the UK was not sufficient to engage article 8 and that, in any event, was not sufficient to displace the normal practice of removing those who have remained in the UK unlawfully. Finally, the decision considered the factors set out in paragraph 395C of the Immigration Rules but concluded that none of those factors provided a sufficiently compelling or compassionate reason to allow the family to remain in the UK.

[5]Zaira’s solicitors responded on 11 September 2009 and 15 October 2009 by asking for a reconsideration of this decision in the light of the considerations that had led to the introduction of the seven-year child concession and contending that those considerations should have been taken into account when the defendant considered the original article 8 application. Particular stress was placed on the fact that Angeles had been born in the United Kingdom and had also spent in excess of seven years continuously in the United Kingdom. This application was responded to by the defendant’s decision letter dated 9 December 2009. This decision refused the application by referring to Zaira’s ability to continue to work and support her mother and daughter if the family returned to Ecuador and continued:

“Account has been taken of the fact that her daughter was born here in May 2002 and that she has attended school here for almost 3 years. However, it is considered that she is still young and can adapt to life in Ecuador. … Article 8 was not designed for individuals to choose where they may enjoy family life …”

[6]Zaira then started these judicial review proceedings and, in granting permission to apply for judicial review, an application that was also dealt with by myself, I directed that the defendant in its 9 December 2009 decision should have, but appeared not to have, given consideration to the article 8 rights of both Angeles and Vicenta in the light of the coming into force of section 55 of the BCIA in November 2009. Zaira’s solicitors submitted further information about the family in a letter dated 24 April 2010. The defendant, in consequence, produced a third decision dated 16 June 2010. The decision again dismissed Zaira’s application. In particular, it addressed Angeles’s situation in these terms:

“… [Angeles] has been here since birth and is now 8 years old. However, she is still very young and can easily adapt to life in your home country. … There is … a possibility that [her father] may still be in Ecuador and your daughter can be reunited with her father. You have submitted your daughter’s school letter saying that she joined [her] school on 7th September 2008. She has only been in this school for 1½ years which is a very short period of school life and can quite easily adapt to school in Ecuador. You are aged 29 and are fit and can continue to adapt to school in Ecuador. Your mother is now 63 years old and can continue to live with you and your daughter back in her country of birth where she would have spent 54 years of her life. Any skills you have obtained in the United Kingdom can be used to support yourself in Ecuador. … It should be noted that whilst attending state school here, [Angeles] may have taken the school place of a child who would have been settled in the United Kingdom.”

[7]The Supreme Court handed down its decision in ZH (Tanzania)

[2011] UKSC 4

, SC. on 1 February 2011. Zaira’s solicitors then made a fourth application to the defendant on her behalf in a letter dated 1 Mach 2011, relying particularly on that decision and on the contention that the earlier decisions had not, as required by section 55 of the BCIA as explained in ZH, given any sufficient consideration of Angeles’s best interests. On 3 March 2011, the defendant replied dismissing that application. In relation to the position of Angeles, the letter stated; “… in a clear distinction from ZH(Tanzania) … neither [Zaira] nor [Angeles] nor Vicenta has a right of abode in the UK and they would all return to Ecuador as a family unit. … [Angeles] is of an age when she can adapt to life in Ecuador with her family. … [Zaira’s] witness statement refers to the difference in the educational system between Ecuador and the UK … [the ECHR] does not confer on an individual the right to remain in the United Kingdom for the purposes of receiving an education and provide no right to an education in a particular country. There is nothing to prevent [Angeles] from continuing her education in Ecuador. Furthermore, although your client maintains that her daughter cannot read or write in Spanish, she does concede that she can speak Spanish and therefore she will be in a position where she can and will be able to understand what is being taught.”

[8]In accordance with the prevailing practice in December 2008, very little factual material about the family circumstances in general and Angeles’s circumstances in particular had been submitted with the original application for leave to remain. The material that was supplied was supplemented with some additional material from Angeles’s school with the further application submitted in April 2010 and with a brief witness statement submitted by Zaira in February 2011 which provided a very brief statement of Angeles’s views. These materials include brief references from a number of people who knew the three family members. This material shows that none of the family members have any criminal record or any recorded adverse reports about them and none of them appear to have ever received any benefits or other public assistance. There is no indication of how the family have supported themselves financially but Zaira is considered to be honest, hard working and a good and supportive mother. The family are participating and well-respected members of a Catholic Church community in the Archdiocese of Southwark. Reports from Angeles’s school for her school year 3 in 2009 show her to be making good progress with a maximum A grading for all subjects. Such evidence as was submitted suggested that she continued to make good progress in school year 4 in 2010. Zaira stated that Angeles speaks but does not read or write Spanish and, as a result, would be set back several years in her school progress if she was moved to the Ecuadorian school system. Zaira also stated that Angeles has never had any contact with her father and that Zaira last had any contact with him was when Angeles was six months old and had no wish to have any contact with him in the future. She also stated that she had spoken to Angeles about her going to Ecuador and that Angeles had no wish to go there and gets upset about this possibility when it is mentioned to her. She believes that she would miss her friends and school in England where she is doing very well. No further information was sought by or provided to the defendant.

Section 55 and a child’s best interests

[9]It is helpful to set out section 55 of the BCIA:

“55 Duty regarding the welfare of children (1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, … (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality; This duty, in an immigration context, requires the defendant taking any decisions about immigration, asylum, deportation or removal that involves a child must be taken having regard to the need to safeguard and promote the welfare of that child.”

ZH (Tanzania) v SSHD

[10]In ZH, the Supreme Court identified the way that this duty should be undertaken. That case involved a Tanzanian citizen who arrived in the United Kingdom at the age of 20 and unsuccessfully claimed asylum on three separate occasions. Her immigration history was described as being “appalling” and as involving fraudulent claims for asylum. She met and formed a relationship with a British citizen two years after her arrival in the United Kingdom and they had two children who were aged 12 and 9 at the time of the hearing in the Supreme Court. The parents separated after eight years in 2005 and the father was diagnosed with HIV and, although he continued to see his two children regularly, was unable to provide a home for them. The Asylum and Immigration Tribunal found that the two children, who were British citizens, could reasonably be expected to go to Tanzania with their mother when she was returned there on the basis that their father could be expected to travel there from time to time to visit them. The Supreme Court allowed the mother’s appeal on the basis that her two children’s best interests were that they should remain in the United Kingdom and that, in consequence, she should be permitted to remain here with them exercising her right to a family life with them.

[11]The leading judgment was delivered by Lady Hale. Her judgment provides detailed guidance as to how a decision-maker should approach the question of how to consider and give effect to the best interests of a child when considering an immigration decision affecting that child. This guidance was as follows:29. Applying, therefore, the approach in Wan to the assessment of proportionality under article 8(2), together with the factors identified in Strasbourg, what is encompassed in the "best interests of the child"? 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.

30. Although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8). In Wan, the Federal Court of Australia, pointed out at para 30 that, when considering the possibility of the children accompanying their father to China, the tribunal had not considered any of the following matters, which the Court clearly regarded as important:

"(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship, 'and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle' (Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5, (1998) 150 ALR 608, 614); (b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; (c) the loss of educational opportunities available to the children in Australia; and (d) their resultant isolation from the normal contacts of children with their mother and their mother's family." 31. Substituting "father" for "mother", all of these considerations apply to the children in this case. They are British children; they are British, not just through the "accident" of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate in their own community (as might have been the case, for example, in Poku, para 20, above). But it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well. 32. Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults. As Jacqueline Bhaba (in 'The "

Mere Fortuity of Birth"? Children, Mothers, Borders and the Meaning of Citizenship', in Migrations and Mobilities: Citizenship, Borders and Gender (2009), edited by Seyla Benhabib and Judith Resnik, at p 193) has put it:

“In short, the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond. Yet children, particularly young children, are often considered parcels that are easily movable across borders with their parents and without particular cost to the children.” 33. We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. On the facts, it is as least as strong a case as Edore v Secretary of State for the Home Department [2003] 1 WLR 2979, where Simon Brown LJ held that "there really is only room for one view" (para 26). In those circumstances, the Secretary of State was clearly right to concede that there could be only one answer. Consulting the children 34. Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child's own views. Article 12 of UNCRC provides: "1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." 35. There are circumstances in which separate representation of a child in legal proceedings about her future is essential: in this country, this is so when a child is to be permanently removed from her family in her own best interests. There are other circumstances in which it may be desirable, as in some disputes between parents about a child's residence or contact. In most cases, however, it will be possible to obtain the necessary information about the child's welfare and views in other ways. As I said in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 AC 1198, at para 49: "Separate consideration and separate representation are, however, two different things. Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required. If the Child and Family Court Advisory and Support Service or, more probably, the local children's services authority can be persuaded to help in difficult cases, then so much the better. But in most immigration situations, unlike many ordinary abduction cases, the interests of different family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for." 36. The important thing is that those conducting and deciding these cases should be alive to the point and prepared to ask the right questions. We have been told about a pilot scheme in the Midlands known as the Early Legal Advice Project (ELAP). This is designed to improve the quality of the initial decision, because the legal representative can assist the "caseowner" in establishing all the facts of the claim before a decision is made. Thus cases including those involving children will be offered an appointment with a legal representative, who has had time to collect evidence before the interview. The Secretary of State tells us that the pilot is limited to asylum claims and does not apply to pure article 8 claims. However, the two will often go hand in hand. The point, however, is that it is one way of enabling the right questions to be asked and answered at the right time. 37. In this case, the mother's representatives did obtain a letter from the children's school and a report from a youth worker from the Refugee and Migrant Forum of East London (Ramfel), which runs a Children's Participation Forum and other activities in which the children had taken part. But the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents' this should not be taken for granted in every case. As the Committee on the Rights of the Child said, in General Comment No 12 (2009) on the Right of the Child to be Heard, at para 36: "in many cases . . . there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child's views are transmitted correctly to the decision-maker by the representative." Children can sometimes surprise one.” "(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship, 'and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle' (Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5, (1998) 150 ALR 608, 614); (b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; (c) the loss of educational opportunities available to the children in Australia; and (d) their resultant isolation from the normal contacts of children with their mother and their mother's family." “In short, the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond. Yet children, particularly young children, are often considered parcels that are easily movable across borders with their parents and without particular cost to the children.”

Consulting the children "1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." "Separate consideration and separate representation are, however, two different things. Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required. If the Child and Family Court Advisory and Support Service or, more probably, the local children's services authority can be persuaded to help in difficult cases, then so much the better. But in most immigration situations, unlike many ordinary abduction cases, the interests of different family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for." "in many cases . . . there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child's views are transmitted correctly to the decision-maker by the representative."

Summary of the section 55 BCIA duty

[12]This case is concerned with the application of the defendant’s section 55 duty to a decision-making process that did not give rise to an Immigration Decision or to an immediate prospect of being deported. The decision was in response to a self-volunteered application for indefinite leave to remain and, although its possible refusal might trigger deportation proceedings in the future, such a refusal does not, for the present, give rise to deportation. It is clear, however, that that does not reduce or minimise the defendant’s duty to take account of the best interests of any child directly affected by that application and its possible refusal.

[13]I venture this summary of the duty imposed on an immigration decision-maker when subject to a section 55 BCIA duty in the context of this case, being one where the relevant decision will have a direct effect on a child such as Angeles who is now aged nine, who was born in the United Kingdom, who has lived her entire life here but who is, with her mother and grandmother, an Ecuadorian citizen, who has had no contact with, and no apparent prospect of ever having any contact with, her Ecuadorian father and who has had no contact with Ecuador or an Ecuadorian way of life:(1) When considering whether it is proportionate to grant or refuse a parent or grandparent of a child living with that person indefinite leave to remain in the United Kingdom or to remove that person from the United Kingdom, the decision-maker must balance the reason for expulsion or refusal against the impact upon the child, particularly when the child can reasonably be expected to follow the removed parent or grandparent.

(2) The child’s best interests must be taken account of in undertaking this balancing exercise. These best interests that are referred to are the child’s upbringing and well-being in general and whether it is reasonable to expect the child to live in another country.

(3) These best interests must be a primary consideration which should be considered first. These interests are, however, not paramount. However, any other consideration should not be treated as inherently more significant but the strength of these other considerations may, when taken together, outweigh the child’s best interests.

(4) The nationality of the child must be taken account of. That nationality is of particular but not decisive importance, particularly if the child is British since deportation would deprive that child of her country of origin and the protection and support that she has acquired socially, culturally and medically from growing up in a British lifestyle and would also lead to a social and linguistic disruption and a loss of educational opportunities. Equally, the fact that a child is non-British may ensure that deportation is of less significance for her but her non-British nationality is not of decisive importance.

(5) The views of a child who is capable of forming her own views in all matters affecting her must be heard and due weight must be given to them in accordance with her age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained.

[14]In the defendant’s fourth and final decision, taken after submissions as to the applicability of section 55, ZH and a further decision, of the Upper Tribunal, LD (Zimbabwe)

[2010] UKUT 278

, UT , had been made on Zaira’s behalf, the defendant’s views as to the applicability of the ‘best interests of the child’ principle as applicable to this family group were clearly set out. These may be summarised as follows:(1) Angeles’s best interests were given full consideration and were a starting point for the necessary balancing exercise involved in the decision as to the family members’ application for leave to remain in the third decision taken in June 2010.

(2) Angeles’s case is clearly distinguishable from both ZH and LD since, unlike the children whose interests were considered in those cases, Angeles is not a British citizen and has a right of abode in the United Kingdom and the three family members would be returning together as a group to Ecuador, their country of origin.

(3) Angeles is of an age when she can readily adapt to life in Ecuador and there is nothing to prevent her from continuing her education there particularly as she had only spent a short time in the English school system when the first decision was taken in September 2009. Moreover, her present inability to read or write Spanish would not adversely affect her schooling there. The third decision also suggested, without any evidence being provided on this point, that Angeles might have taken the school place of a child who was settled in the United Kingdom. The decision also proceeded on the basis that Angeles had only, in June 2010, spent 1½ years in the United Kingdom school system. By then, Angeles was in fact completing school year 3 and was aged 8 years and 1 month and had therefore spent almost 3 years in the school system of which the last two had been spent in her primary school. Guidance as to how to provide for the Section 55 duty

[15]The judgment of Lady Hale in ZH recognises that it is not easy for a decision-maker in the immigration field to give full effect to the duty to take the best interests of a child affected by that decision into account. Her judgment accepts that in most immigration situations, separate representation of the child is not necessary, particularly when the child would remain with at least one parent as a result of the decision in question. However, she stressed in her judgment that it is essential to obtain all the necessary information about the child in other ways before the decision is taken. To do this, the right questions must be asked of the child and others to obtain a full and fair understanding of the child’s situation and views. This might include information obtained from the Child and Family Court Advisory and Support Service or the local Children’s Services Authority, if those services can be persuaded to help. She also refers to a pilot scheme in the West Midlands, the Early Legal Advice Project, which is aimed at assisting the caseworker involved in the immigration decision to get at the full facts. This project involves the child being offered an appointment with a legal representative who has had time to collect evidence before the interview. However, the project is limited to asylum claims and does not apply to article 8 claims. Overall, Lady Hale’s judgment stresses that it is essential that the right questions must be asked by the decision-maker and answered by the child and on behalf of the child at the right time in the decision-making process.

[16]The defendant has issued statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children: Every Child Matters – Change for Children Issued by the Home Office on behalf of the UK Border Agency and the Department for Children, Schools and Families (November 2009). . The guidance states that it must be taken into account by any person exercising immigration functions and, if that person decides to depart from it, clear reasons must be provided for doing so. The following is a summary of relevant extracts from this guidance:(1) The decision maker’s duty to take account of the need to safeguard and promote the welfare of children extends to the need to prevent impairment of their development including their physical, intellectual, emotional, social and behavioural development, to ensure that they are growing up in circumstances consistent with the provision of safe and effective care and so as to enable them to have optimum life chances and to enter adulthood successfully (paragraph 1.4).

(2) The UK Border Agency should make best use of information obtained from all forms of information exchange and decision-makers should be trained with regard to their duty to safeguard and promote the welfare of children (Part 2).

(3) Children should be consulted and their wishes and feelings taken into account. In instances where parents and carers are present, they will have primary responsibility for the children’s concerns.

[17]However, no separate instructions have been inserted into the Immigration Directorate Instructions relating to article 8 immigration decision-making. Moreover, no separate questionnaire has been issued which can be filled out by an applicant for decisions of the kind sought in this case which provides questions relevant to a determination of an affected child’s best interests.

[18]It is also necessary to consider what is referred to by the expression “welfare of the child” in section 55. In ZH, Lady Hale equated that expression with the well-used expression, in the law relating to children, “best interests of the child” in this way: 25. 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". Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration". Miss Joanna Dodson QC, to whom we are grateful for representing the separate interests of the children in this case, boldly argued that immigration and removal decisions might be covered by section 1(1) of the Children Act 1989:

"When a court determines any question with respect to – (a) the upbringing of a child; or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration."

However, questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNCHR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1:

"The term 'best interests' broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: i) the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); ii) the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3)."

This seems to me accurately to distinguish between decisions which directly affect the child's upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death.

[19]In considering what should be taken into account when considering the welfare and best interests of a child, it is clearly relevant to have regard to the matters specified in the statutory checklist provided for by section 1 of the Children’s Act 1989 which reads as follows: Welfare of the child. 1(1) When a court determines any question with respect to—(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration. (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to— (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

[20]These matters must be taken into account whenever a court is concerned with an application for a prohibited steps order, a residence order, a specific issue order - concerned with giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child - or a special guardianship order. These decisions are ones which require the welfare and bests interests of a child to be taken into account. The same matters are therefore clearly ones that should be taken account of when a decision-maker is making a decision that requires the exercise of a section 55 duty.

Parties’ submissions

[21]On behalf of the three family members it was submitted that insufficient weight had been placed by the decision-maker to the views, circumstances, welfare and interests of Angeles. In particular, no or insufficient attention had been placed on the fact that she had been born in England and had lived there continuously for almost nine years when the fourth and last decision was taken and had had no, or only minimal contact with Ecuador throughout her life. The potential impact on Angeles and on her schooling of moving to Ecuador were not considered in any informed way and no weight was apparently placed on, nor any attempt made to ascertain, her own views which were adamantly opposed to her moving to that country. Finally, the decisions focused entirely on the conduct of Zaira, particularly on the fact that she had arrived and remained in England illegally. Although that action could not be condoned, that could not count against Angeles’s best interests yet the decisions appeared to have taken no account of the need to consider Angeles’s interests separately from those of her mother and grandmother. To paraphrase the submission, no attempt had been made to avoid visiting Angeles’s mother’s immigration control deficiencies onto her.

[22]On behalf of the defendant, it was submitted that Angeles’s interests were a primary, but not the primary consideration that had to be taken account of by the decision-maker. The immigration decisions in question involved a balancing exercise which was adequately and properly carried out. That exercise included a consideration of all the necessary and relevant factors including the fact that all three family members would remain together if they returned (or moved) to Ecuador and that it was of particular importance that Angeles was an Ecuadorian and not a British citizen.

Discussion

[23]It is first necessary to determine what should be considered to be the relevant immigration decision in this case. Due to the way that leave to remain was applied for and the changing and growing awareness of the significance of section 55 to the decision, the relevant decision was in reality a “rolling decision” taken over the period 3 September 2009 to 3 March 2011 in four separate but cumulative decisions. However, the decision-maker should have reconsidered afresh the entire decision on each of the four occasions that a decision letter was issued, putting out of his or her mind all earlier decisions. Furthermore, the decision was one that related to three separate family members, two of whom were described as being Zaira’s dependents in the application. Thus, each family member should have been considered separately since each had separate, albeit related, article 8 rights and interests.

[24]It is also clear that the decision-maker was greatly hampered by the paucity of the information supplied by those preparing, or advising on the preparation of, the various applications made by and on behalf of the family members. It is of course the case that only the last application was made following the Hale guidance, set out with such clarity in ZH, had been promulgated and that last application was submitted in a letter dated 3 March 2011 only 29 days after the decision in ZH had been handed down. As the guidance makes clear, it is not sufficient for the decision-maker to rely solely on information volunteered by a child’s parent, particularly if it is clear that that information is either incomplete or potentially slanted. In such cases, further information must be sought by the decision-maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires and seeking or soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children’s welfare groups.

[25]In this case, the decision maker needed to have detailed information about Angeles’s life in England over the entire 9 years of her life including detailed information of where she had lived and was now living, her relationship with her mother and grandmother, her entire educational history, her social network and her aptitudes and future predictions for her further all-round development if she remained in England for the remainder of her childhood. This information needed to be compared with what her life would be like if she moved to Ecuador. That would require detailed information from Zaira and Vicenta as to how they had lived and maintained themselves in England and as to their and Angeles’s life-style, including where and how they would live and maintain themselves, if they returned to Ecuador. Detailed information about the relevant schools and school system that Angeles would attend in Ecuador would also be needed. All this information was required to enable a balance view to be formed as to what was in her best interests. The decision- maker also needed to ascertain, or be properly informed about Angeles’s own views, and it is difficult to see how her views could be objectively and fairly obtained without someone other than Zaira speaking to her and exploring with her in depth her feelings, attitudes and preferences. If those views were to be obtained by a third party source rather than the decision-maker, it is difficult to see how, in this case, the decision-maker could proceed without first commissioning, or seeking from Zaira, an appropriate assessment or report from that third party source. Finally, more detailed and up to date reports from Angeles’s school, church and any social group that she participated in would seem to be necessary.

[26]Each decision, and certainly the last made in March 2011, needed a complete set of information with all appropriate additions from the information available since the previous decision. That would not necessarily involve further third party interviews but further school reports and information about any changes in circumstance would be needed.

[27]It is not necessary or even desirable, to undertake a minute textual analysis of each of the four decisions in this case or of the composite of those decisions. The following general conclusions are appropriate, taking account of the Hale and statutory guidance and the general conclusions as to the information available to the decision-maker in this case:(1) The information available to the decision-maker was self-evidently woefully inadequate. It is true that its deficiencies are only clearly evident as a result of the ZH decision but, that said, it was not possible for the decision-maker to form a balanced view as to what course of action was in Angeles’s best interests and much of the missing information could have been obtained by appropriate requests for it to be supplied that could have been directed to the applicant’s solicitor and to Angeles’s school and appropriate third party agencies.

(2) No weight appears to have been placed on the fact that Angeles was as close as it is possible to be to being a British citizen without having acquired citizenship. She was born and has always lived in England, she has had no contact with Ecuador that was revealed, she has had no contact with her father and has never had such contact, she is not proficient in Spanish and her reported views were to the effect that her developmental welfare would or could well be adversely affected by an enforced move to Ecuador. Finally, she is reported to be firmly and emotionally attached to England with no wish to be displaced. No consideration was given as to whether she would need professional guidance and assistance before any enforced move to Ecuador took place if such is to occur.

(3) The decision-maker, particularly in the June 2010 decision, understandably but incorrectly made certain adverse assumptions about Zaira and also about Angeles’s ability to fit into the Ecuadorian school system and way of life without there being any sufficient underlying factual information available on which to base those conclusions. For example, it was assumed that Angeles would be able to slot satisfactorily into the Ecuadorian school system aged 9 even though she could not currently read or write in Spanish.

[28]It follows that each decision, and particularly the last taken in March 2011, is fatally flawed. Each decision was not properly informed about what was in Angeles’s best interests and had only sparse information about Zaira’s and Vicente’s situation in both England and Ecuador. Thus, the decisions did not give, and could not have given, any appropriate consideration, let alone primary consideration, of Angeles’s best interests.

Conclusion

[29]Each of the four decisions, being those dated 3 September 2009, 9 December 2009, 16 June 2010 and 3 March 2011, are set aside. It is for the parties to decide whether, or how, Zaira’s, Vicente’s and Angeles’s application or applications for leave to remain should be addressed in the future. HH Judge Anthony Thornton QC

Cited in 12 later judgments

and 3 more of the most senior