Mansoor, R (on the application of) v Secretary of state for the home department [2011] EWHC 832 (Admin)

[2011] EWHC 832 (Admin)

Case No CO/4453/2010

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Venue Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Venue Birmingham

Date Wednesday 23rd March 2011

B4 6DS

Before

THE HONOURABLE MR JUSTICE BLAKE

Between

The Queen on the application of MansoorClaimant

Secretary of State for the Home DepartmentDefendant

(DAR Transcript of

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Mr Mahmood (instructed by the Immigration Advisory Service) appeared for Claimant.

Mr Mandalia (instructed by the Treasury Solicitor) appeared for Defendant.

Judgment

Introduction

[1]This is an application for judicial review of decisions of the Secretary of State for the Home Department taken between 20 October 2009 and 8 March 2011, rejecting representations made by the claimant, Mrs Mansoor, seeking indefinite leave to remain in the United Kingdom in order to continue to reside with her husband and children who are all lawfully resident here.

[2]The case has a substantial immigration history but for present purposes it may be summarised that after a variation of leave appeal was rejected in her case, representations were made on her behalf in March 2009 by the Immigration Advisory Service leading to the three objections which are summarised. Permission to move for judicial review was granted on renewed application on 20 September 2010 and thereafter the subsequent post-permission decision was taken in March 2011, which has formed the basis of skeleton arguments drafted by counsel on both sides who have appeared today.

[3]As will become apparent, the subject matter of this particular problem has been the subject of legal developments that have significant impact upon the approach to be adopted by the Secretary of State and the courts. At the outset of this hearing I raised with both counsel a number of concerns that I had about the decision-making in this case, some reflected in the skeleton argument of the claimant and some not there spelt out. Very properly those concerns were considered by Mr Mandalia, counsel for the Secretary of State, and at some point in the morning an application was made for him to seek instructions, as a result of which it was indicated that upon further consideration the claimant would be granted indefinite leave to remain. Thereafter this was no longer a contested matter as far as the outcome was concerned. Mr Mahmood nevertheless invited me to direct that the hearing should continue so any defects in the decision making could be corrected and guidance given for the future. I consider that this is an appropriate case for continuing the hearing and for a judgment to be given. I give leave for this judgment to be published.

The factual background

[4]With that brief introduction I return to the detailed analysis of the pertinent facts that as always must provide the context for the broader issues deployed in the case.

[5]The claimant's husband, like the claimant herself, came from the Yemen. The claimant's husband was born in 1958 and the claimant in 1960. They had born to them during the currency of a marriage which was located in the Yemen seven children, born respectively in August 1986 (Bashir now 24) February 1988 (Aishir now 23); 3 March 1990 (Ragab now 21); 5 June 1992 (Morsal now 18); 12 December 1994 (Mohamed now 16); 20 April 1996 (Nathear now 14) and either 1 March or 1 May depending which document is accurate (Morthatha now aged about 12).

[6]The husband came to the United Kingdom in 1998. He was admitted in some capacity which led to indefinite leave to remain and in due course, on a date presently unknown but before the arrival of his family, he was naturalised as a British citizen. The claimant plus all seven of the children came to this country on 30 April 2005 with entry clearances operating as leave to enter for herself and all children to join their husband/father. Following the terms of the then applicable Immigration Rules all of the seven children were given indefinite leave to remain on arrival. The claimant has a spouse and, on seeking admission to the United Kingdom for settlement with a spouse for the first time, was given limited leave of two years, with the condition that there should be no recourse to public funds.

[7]The requirement for a spouse to live for two years before being eligible for indefinite leave to remain was introduced in about April 2003, amending the previous practice, where a probationary one-year period was applied to ensure that marriages were bona fide, durable and deserving of the immigration consequences that indefinite leave to remain would provide (see Macdonald Immigration Law and Practice 6th Edition (2005) at 11.69).

[8]At the time that the claimant and her seven children arrived in the UK, the husband was able to satisfy the requirements of the Immigration Rules as to maintenance and accommodation without recourse to public funds because he had a rented home and he was in employment. If his employment had continued then the problems which arose in this case would not have existed, but according to the findings of the Immigration Judge (IJ) who considered this case in 2007, the husband was made redundant in August 2006. A month later he had recourse to housing benefit and some form of income supplement to support himself and his family, who at that time were all living in the same house.

[9]Six months after this in March 2007 the claimant applied for indefinite leave to remain as the second anniversary of her admission as a spouse was fast approaching. The marriage was still subsisting. The couple continued to live together as man and wife, in one household; they did so with all their children now two years older than they were on arrival. However, the IJ observed that as the husband was claiming public funds in the form of income support and housing benefit, there was a difficulty about the claimant's ability to continue comply with the Rules precluding recourse to public funds.

[10]As a result the IJ concluded that she did not qualify for indefinite leave to remain under the rules and the appeal was dismissed on that basis. It is perhaps worth noting that according to Macdonald Immigration Law and Practice 8th edition Volume I paragraph 4.5.1: "An applicant is not treated as having recourse to public funds by relying on public funds provided to the sponsor in his or her own right provided that the applicant's presence in the United Kingdom has not resulted in increased entitlement for the sponsor.” HC 395 para 6A, inserted by Command 4851 in 2000, is cited as authority for that proposition.

[11]Here the husband, would have been entitled to income support and housing benefit for the house and for his children, irrespective of the presence of the wife. Mr Mahmood accepts that it is likely that there would have been some modest addition to his entitlement by reason of the presence of his spouse, but in weighing the economic consequences of the spouse's continuing presence, it is only the modest addition from a single man to a married man's income support allowance that is the material measure of difference. Further the wife, and not the children, was only subject to the need to meet this condition because of a two year rule added to safeguard against insubstantial marriages, that was never a factor in this case.

[12]The IJ nevertheless went on to consider the application of

Article 8 of the European Convention on Human Rights

to this case and at paragraph 46 he did so in quite summary terms :

"There is no overall breach of human rights. The appellant can return to the Yemen with her children and /or her husband and apply from there if she wishes to re-enter."

[13]He returned to the theme at paragraph 67 of his judgment where he said:

"Here the appellant and her seven children had enjoyed a family life in Yemen. They had enjoyed it with the sponsor/husband prior to 1998 when he came to the United Kingdom. They enjoyed it for seven years until she came to the United Kingdom. They had enjoyed it with each other and with the sponsor/husband in the United Kingdom sending money back. They have only had two years in which permission was granted for them to remain in the United Kingdom. Permission was always conditional and not certain. There is no illegality here, I acknowledge, but that is not the same as the claim that they have any legitimate expectancy to remain simply because they have been here. They can continue to enjoy that previous state of affairs back in Yemen. Indeed there is no bar whatsoever to the husband also going back to Yemen. They can continue contact and can visit, communicate and maintain family ties. This is not a breach which tears the family asunder. Accordingly I dismiss this appeal."

[14]Insofar as this assessment was to be relied in by the Home Office as the basis for rejecting subsequent Article 8 requests, it is now apparent that there are certain problems with it. First he seems to have lumped wife and children together in terms of their permission to remain in the United Kingdom being conditional and not certain. That is not correct. The children had been granted indefinite leave to remain and, absent misconduct by them, would not be deprived of the benefits of that permission irrespective of the employment history of their sponsor father.

[15]Second the reference to “no bar whatsoever” appears to be a tangential reference to an obstacle which is not insurmountable because it would be a return to the status quo, but at the time of the decision there was case-law emerging which is now clear beyond doubt that the test for engagement of Article 8 is not whether there are insurmountable obstacles or bars to return but whether it is reasonable to expect any or each of the members of the family to return to the country to which the claimant is to be removed. The fact that there is no bar to the family returning is not the point but whether it would be reasonable to expect them all to do so.

[16]Third, the reference to “continue to contact and can visit and communicate and maintain family ties” seems to again have been generic assessment as between husband and wife, husband and minor children, claimant wife and minor children as well as the parents and their older children, who were now over the age of 18 using the ages given at the outset of this judgment. If members of a family enjoy family life in an inter-dependent household of partners and minor and dependent children it is no comfort to say that they can continue to enjoy that family life by telephoning each other, emailing, video conferencing or any of the other forms of electronic technology that may be in existence. Lord Bingham was indicating this in the landmark case of Huang v SSHD

[2007] UKHL 11

at paragraph 20, but more recently, and I appreciate not available to the IJ at the time, the Upper Tribunal has made the point in the case of EM (Zimbabwe)

[2010] UKUT 98

IAC. If the IJ thought that there would be no interference with the family life enjoyed between husband and wife and parents and minor children if they could communicate from abroad he was again mistaken.

[17]Permission to appeal the IJ’s decision was refused by the AIT and on statutory reconsideration. On 3 April 2009, that is after the claimant's leave to remain had expired, a further application was made by the Immigration Advisory Service that did focus on the interests of the children. They had entered education in this country, certainly the younger ones, on arrival here in April 2005 and the IAS in a covering letter to a further leave to remain application said:

"It is submitted that if Mrs Mansoor is required to return to the Yemen at this stage then this would cause insurmountable difficulties for her children. At present Mrs Mansoor is very much involved with the day-to-day care of her youngest children and is also emotionally attached to all of her children. If she is required to return to Yemen at this stage, then this will severely disrupt her private and family life having a major impact on her husband and children. She is a law-abiding citizen and has made every effort to integrate into the British way of living. Moreover it is submitted that Mrs Mansoor's youngest children who are mainly dependent on her are innocent victims of their circumstances. The children are settled in school and cannot return to Yemen at this stage without disrupting their education if they were to accompany their mother. Therefore in the interests of fairness and justice it is only just and right for Mrs Mansoor's youngest children not to be separated from her."

Further representations were made about the obstacles to be faced if the entry clearance route that the Immigration Judge had in mind was to be followed.

[18]Those representations were rejected on 20 October 2009. I can summarise the relevant passages of the decision letter as:-(i) it was not accepted that family life was enjoyed between the children over 18, who were last known of as living in the same household as the claimant and her husband;

(ii) the children under 18 were of an adaptable age who could adapt to life in the Yemen and returned whence they came;

(iii) there are no insurmountable obstacles to the husband and children returning to the Yemen and there will be no problems in doing so;

(iv) the conclusions of the IJ previously quoted are repeated and emphasise that contact can be made by visits and such like.

[19]By this stage of course not only had the House of Lords delivered the decision in Huang it had also made plain in a sequence of important decisions in Chikwamba v SSHD

[2008] UKHL 40

, EB (Kosovo) v SSHD

[2008] UKHL 41

and Beoku-Betts v SSHD

[2008] UKHL 39

that the family life to be assessed was the family life enjoyed between all members and that it would not normally be an answer where the consequence would be to separate the family to require someone else to go back and apply again under the Immigration Rules, particularly if the husband’s involuntary unemployment had been the cause of the lack of qualification under the Immigration Rules.. For good measure one can add the decision of the Court of Appeal in MA (Pakistan) v Secretary of State for the Home Department

[2009] EWCA Civ 953

27 July 2009 applying Chikwamba to the position of a spouse without accompanying children.

[20]Further by that stage there had been significant developments in terms of the interests of the child as a mandatory consideration in immigration control. First, there was the withdrawal of the immigration reservation from the United Kingdom's adherence to the United Nations Convention relating to the rights of the child; second, the coming into force of section 55 of the Borders, Citizenship and Immigration Act 2009 and third the onward march of Strasbourg jurisprudence dealing with the interests of children where either a child or a parent has committed a serious criminal offence otherwise justifying deportation and in particular the importance of respect of the best interests of the child principle in the context of Article 8.

[21]By the time of the October decision the Secretary of State had on 25 March 2009 exercised discretion to register the four youngest of the claimant's children as British citizens pursuant to section 3 of the British Nationality Act 1981. Reference again is made to Macdonalds Immigration Law and Practice 8th edition Volume 1 paragraph 2.55 footnote 3, which sets out the circumstances where discretion to register a child as a British citizen will be exercised: “The main general criteria for discretionary registration are that the child's future should clearly be seen to lie in the UK, that there are close connections (either through a parent or otherwise) and that the child of 13 or over has lived in the United Kingdom for two years"

[22]So from March 2009 not only was the Secretary of State dealing with a family whose husband/father was a British citizen for a number of years but now four of the youngest children had been registered and were issued passports later in the year. It seems that the present position is that all of the older children are also seeking naturalisation, the route to British citizenship available to aliens who are adults, but that longer process is outstanding at the present time. The significance of citizenship in the issues which fall for determination in this case will become clearer in due course.

[23]Further representations were made which led to a further negative decision on 15 January 2010. Here Chikwamba and Beoku- Betts were acknowledged as relevant authorities but the Article 8 decision is justified in these terms:

"In reaching this decision your clients rights have been balanced against the wider rights and freedom of others in the general public interest. Specifically we have weighed up the extent of the possible interference with her private/family life and with particular regard to her length of residence against the legitimate need to maintain an effective national immigration policy. With respect to the latter consideration, we have taken into account her failure to observe the immigration regulations. In light of the circumstances of the particular case we consider that our actions are proportionate to the social need being fulfilled. We do not therefore accept that the decision to proceed with her removal from the United Kingdom would breach Article 8"

(emphasis supplied)

[24]The decision letter continued:

"But the expectation is that she would return to the Yemen and to apply for entry clearance in the category which she seeks to remain and the husband and children would be free to accompany her."

[25]No particular consideration appears to have been given in this revised decision to the interests of the children despite the advancing tenor of the case law, but it is to be noted that following the reference to Beoku-Betts a decision maker says this:

"Even accepting that your client has established a family life in the United Kingdom in light of her blatant disregard for the immigration regulations, it is considered that we are entitled to weigh such factors heavily against her when assessing whether interference with her family life is proportionate. Given the circumstances of your client's particular case we are of the opinion that requiring her to return to the Yemen thereby interfering with her family life is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control."

(emphasis supplied)

[26]The application for judicial review was then lodged, relying on Article 8 and the position of the child, there was then a related issue as to whether a refusal of leave to remain by a person who had no extant leave at the time the application was made should generate an in country right of appeal at all or where there are live Article 8 issues that issue is no longer live before this court in the light of the recent guidance of the Court of Appeal in the case of Daley-Murdock

[2011] EWCA Civ 161

Respect for family life

[27]Not of central importance to the present case is RG Automatic Deport (Nepal)

[2010] UKUT 273

, where the Upper Tribunal noted the decision of the Court of Appeal in SSHD v HK (Turkey)

[2010] EWCA Civ 583

to the effect that the previous learning suggesting that the age of 18 was the point in which family life ceased to exist was not an accurate reading of the decision of Kugathas and that where a family was established in the same household the mere fact that one of the members reached the eighteenth birthday did not of itself suddenly cut off the nature of the family life that was enjoyed between them, and the tribunal agreed.

[28]By 2010 it was now clear beyond argument in a number of cases that regard to insurmountable obstacles, as opposed to whether it was reasonable to expect the family member to relocate, was a serious misdirection, that, as previously vitiated in my judgment, the decision both of the IJ and the first of the Secretary of State's decisions in the sequence of decisions in the case.

[29]The case of EM (Zimbabwe)

[2010] UKUT 98

IAC also dealt with how family life would be interfered with if contact was by electronic and long distance communication in a case where it was enjoyed in a common household between minor children and dependent parents. It further noted the importance of the welfare of the child as a primary consideration that it considered to be a consideration of the first order in this arena. The importance of that decision pales in significance compared with the next major piece of jurisprudence that came upon the scene, and that of course is the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKFC 4, judgment given on 1 February 2011.

[30]The following extracts from the leading judgment of Lady Hale are important:

“21. It is not difficult to understand why the Strasbourg Court has become more sensitive to the welfare of the children who are innocent victims of their parents’ choices. For example, in Neulinger v Switzerland(2010) 28 BHRC 706, para 131, the Court observed that ‘the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken . . . of ‘any relevant rules of international law applicable in the relations between the parties’ and in particular the rules concerning the international protection of human rights’. The Court went on to note, at para 135, that ‘there is currently a broad consensus including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount’. 22. The Court had earlier, in paras 49 to 56, collected references in support of this proposition from several international human rights instruments: from the second principle of the United Nations Declaration on the Rights of the Child 1959; from article 3(1) of the Convention on the Rights of the Child 1989 (UNCRC); from articles 5(b) and 16(d) of the Convention on the Elimination of All Forms of Discrimination against Women 1979; from General Comments 17 and 19 of the Human Rights Committee in relation to the International Covenant on Civil and Political Rights 1966; and from article 24 of the European Union’s Charter of Fundamental Rights. All of these refer to the best interests of the child, variously describing these as ‘paramount’, or ‘primordial’, or ‘a primary consideration’. To a United Kingdom lawyer, however, these do not mean the same thing. 23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC: ‘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.’ This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions ‘are discharged having regard to the need to safeguard and promote the welfare ofchildren who are in the United Kingdom’. 24. Miss Carss-Frisk acknowledges that this duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard tothe need to safeguard and promote the welfare of any children involved will not be ‘in accordance with the law’ for the purpose of article 8(2). Both the Secretary of State and the tribunal will therefore have to address this in their decisions. 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 UNHCR, 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: the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a childfrom parents against their will (Article 9); 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, court 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. 26. Nevertheless, even in those decisions, the best interests of the child must be a primary consideration. As Mason CJ and Deane J put it in the case of Ministerfor Immigration and Ethnic Affairs v Teoh[1995] HCA 20, (1995) 183 CLR 273, 292 in the High Court of Australia: ‘A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.’ As the Federal Court of Australia further explained in Wan v Minister for Immigration and Multi-cultural Affairs[2001] FCA 568, para 32, ‘[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. 27. However, our attention was also drawn to General Comment No 6 of the United Nations Committee on the Rights of the Child (2005), on the Treatment of Unaccompanied and Separated Children Outside their Country of Origin. The context, different from ours, was the return of such children to their countries of origin even though they could not be returned to the care of their parents or other family members (para 85). At para 86, the Committee observed: ‘Exceptionally, a return to the home country may be arranged, after careful balancing of the child’s best interests and other considerations, if the latter are rights-based and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights based arguments such as those relating to general migration control, cannot override best interests considerations.’ 28. A similar distinction between ‘rights-based’ and ‘non-rights-based’ arguments is drawn in the UNHCR Guidelines (see, para 3.6). With respect, it is difficult to understand this distinction in the context of article 8(2) of the ECHR. Each of the legitimate aims listed there may involve individual as well as community interests. If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country. It may amount to no more than that. ……. 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 EthnicAffairs[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.’ 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 Statefor 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.”

Lord Hope concurring said “44. There is an obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration. The proper approach, as was explained in Wan v Minister for Immigration andMulticultural Affairs[2001] FCA 568, para 32, is, having taken this as the startingpoint, to assess whether their best interests are outweighed by the strength of any other considerations. The fact that the mother’s immigration status was precarious when they were conceived may lead to a suspicion that the parents saw this as a way of strengthening her case for being allowed to remain here. But considerations of that kind cannot be held against the children in this assessment. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.” Lord Kerr added: “46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result. 47. The significance of a child’s nationality must be considered in two aspects. The first of these is in its role as a contributor to the debate as to where the child’s best interests lie. It seems to me self evident that to diminish a child’s right to assert his or her nationality will not normally be in his or her best interests. That consideration must therefore feature in the determination of where the best interests lie. It was also accepted by the respondent, however, (and I think rightlyso) that if a child is a British citizen, this has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child will live. As Lady Hale has said, this is not an inevitably decisive factor but the benefits that British citizenship brings, as so aptly described by Lord Hope and Lady Hale, must not readily be discounted.” ‘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.’ ‘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.’ ‘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: the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a childfrom parents against their will (Article 9); 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, court 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. ‘A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed 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. ‘Exceptionally, a return to the home country may be arranged, after careful balancing of the child’s best interests and other considerations, if the latter are rights-based and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights based arguments such as those relating to general migration control, cannot override best interests considerations.’ ‘(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 EthnicAffairs[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.’ Lord Hope concurring said

Lord Kerr added:

[31]More than one decision of this court and the Court of Appeal has had to grapple with the importance of the principles set out therein in a wide variety of circumstances relating to aspect of immigration control, including detention of asylum seekers, application of the Dublin regulation, or indeed the return of unaccompanied child asylum seekers to Afghanistan. Whilst all those cases have important aspects of the learning, the context is materially different to the present one and I do not burden this judgment by further citations from them.

[32]Amongst the important conclusions to be derived from Lady Hale's judgment at paragraph 28 is that whilst the best interests of the child is a primary consideration, and not the only or the paramount consideration, it is much, much more than merely a consideration to which regard must be had. As I read paragraph 28, she adopts the approach recommended by international bodies, including the general comments of the rights of the child and the UNHCR guidelines, to the extent that a rights-based approach must be brought into being in order to justify accumulation of factors which could be said to outweigh the best interests of the child as a primary consideration in these cases. She says:

"Each of the legitimate aims listed there may involve individual as well as community interests. If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country. It may amount to no more than that."

[33]In the context of Article 8, the legitimate rights-based approach to justification was interference with family life and has to be found in Article 8.2 itself:

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[34]The terms of the immigration regulations are not themselves a legitimate aim within the context of Article 8.2, but as has been repeatedly pointed out maintaining the integrity of our system of immigration control is a means of protecting the economic well being of the country and may thus justify an interference with family life. Lord Bingham makes the point in Huang that deception and fraud and the perception that our borders should be should be discouraged. The removal of those who commit serious criminal offences, enter unlawfully and in breach of previous orders, and who remain with no colour of an arguable claim to do so may engage more than one legitimate aim within Article 8(2) but protecting the economic well being of the country is normally the most appropriate bone to consider.

[35]However the terms of the immigration rules are not a legitimate aim in their own right. Family life is not to be interfered with to protect the Immigration Rules and there numerous requirements. A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact that a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that otherwise to be respected. The importance of this observation may be illustrated by the facts of this case. The claimant never got ILR simply because her husband was made redundant and therefore had recourse to public funds to which he and the children were entitled but the claimant, because of the period of time when she was subject to conditional leave, could not have recourse. As Lady Hale has pointed out, general considerations of economic well-being, where other factors are strongly in favour of the claim, are unlikely to be of great weight.

[36]The claimant only failed to meet the Rules because she (unlike her children was subject to the two year requirement). This was not a requirement imposed to prohibit general future dependency on state funds, but to guard against insubstantial marriages. This was not a consideration that could apply to the this marriage and this claimant.. Certain rules applied to people in different circumstances than the mischief aimed at can have disproportionate outcomes as the Court of Appeal have more recently made plain in the case of Quila & Anr v SSHD

[2010] EWCA Civ 1482

[37]Non compliance with the Immigration Rules is the starting point for human rights analysis, because if you can comply with the rules you do not need to rely on human rights to remain; it is not the end point. The Rules themselves as Lord Bingham has pointed out in Huang, are not the source of balance between the public interest and that of the individual.

[38]It is thus misdirection for the decision maker to state as in this case, the policy of the immigration regulations justifies interference with family life. It would be of considerable benefit if decision-makers grappled with that point in the future.

[39]On 8 March 2011, shortly before the hearing of this application, a further decision was made. Amongst the misdirections that can be identified in that decision are : 1) a continuing failure to recognise that the elder children also enjoyed family life on the facts are known to the Secretary of State following the RG (Nepal) approach; 2) a failure to recognise that the citizenship of the younger children was a very important matter in the consideration of the balance 3) continued reliance upon the decision of Immigration Judge Telford about it being open to the family to relocate without asking the question whether it was reasonable to expect them to do so; and 4) failing to recognise the weight to be given to the interests of the children's continued education and development in this country. At this stage the children concerned had been here for a month or so short of six years and, although none of them could say to have spent most of their life here, the younger children would have now spent the formative years of their life here. I summarise Morthatha from 6 to 12, Nathear from 8 to 14, Mohamed from 10 to 16, Morsal from 12 to 18. It would also have been a material consideration for the same department to have realised why they granted discretionary registration because the lives of these children was based in the United Kingdom when considering whether it was conceivable that they could consider it reasonable to expect those same children to relocate to the Yemen.

[40]I accept, as has been submitted to me by Mr Mandalia, that the Secretary of State might have had little more assistance from the claimant's team in terms of spelling out a) the present factual basis of the Article 8 claim which, as is well known, is continuing and is not a historical claim fixed in a moment of time and its current status is what has to be assessed by this court as well as perhaps drawing before, a little earlier than was done so, the precise points of importance arising from the ZH (Tanzania) case.

[41]Nevertheless what is wrong with these decisions, in my judgment, is and was 1) it was not based upon an assessment of the family life or private lives as it exists in the light of the circumstances, including the immigration circumstances, in which it came into existence. 2) It did not identify that the best interests of the child are a primary consideration in the exercise of any administrative law function relating to immigration (whether an appealable immigration decision or not) and that those interests need to be specifically recognised, addressed and afforded appropriate weight in the light of the particular circumstances of the case. 3) They did not apply a rights-based approach to factors capable of outweighing the interests of the child. The case is a compelling example of how marginal economic consequences, resulting in absence of leave to remain, have bedevilled a well-founded family life to which respect was due and has not been afforded.

[42]As a matter of Article 8 case law developed by the Strasbourg court the nationality may only be a material and important factor in considering reasonableness and proportionality. The nationality of both the spouse and the dependent children will always be important in considering whether it is reasonable to expect the other family member to relocate elsewhere and the proportionality of the interference in the light of legitimate aim. A national enjoys the international human right as well as the domestic human right to live and remain in their own country.

[43]It is now necessary to point out that there had been yet further developments likely to have a significant impact upon this question since the judgment of the Supreme Court in ZH (Tanzania), where Lady Hayle correctly summarised the Strasbourg case law as showing it was not a trump card. In the case of C-3409 Zambrano v Onem 8 March 2011 , a case arising from Belgium where parents who are non-nationals of the European Union had given birth to a child in Belgium who had Belgian nationality by reason of their nationality law were held to have a right to remain in order to look after the child and give effect to the child's rights of residence. The Court of

Justice answered the question in the following terms:

"Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."

Those rights including the right to continue to reside in their own country.

[44]This was a decision given on 8 March, it is not in the skeleton arguments of Mr Mahmood, and although much of the reasoning underlying that is to be better deployed in the opinion of Advocate General Sharpston delivered on 30 September 2010, it will remain for another day to see how far that case has impact in a case like this, where, by reason of their British nationality, the children as well as the father are also citizens of the European Union and now apparently entitled to exercise rights, even without having crossed the frontiers of a European Union state, for the purpose of economic or related activity.

[45]For all those reasons I am satisfied that, had not the Secretary of State sensibly decided to review this decision and grant indefinite leave to remain, I would have quashed all the decisions which were still live as not based upon proper self direction according to the case law, and I would have concluded, on the basis of the information before me that it would not have been open to a reasonable Secretary of State properly directing herself to have done anything other than the course that she adopted in this case. In the event no relief other than allowing this application with costs is necessary.