Best interests of children Charlotte Bayati and Colin Yeo

Table of Contents

International instruments.............................................................................................. 3Convention on the Rights of the Child..................................................................................3

ZH (Tanzania)............................................................................................................................................4European Convention on Human Rights.............................................................................6

Cases...............................................................................................................................................................6

Statute................................................................................................................................... 9Cases............................................................................................................................................................10

Guidance............................................................................................................................ 13Statutory guidance...................................................................................................................13Main process guidance...........................................................................................................14Family Returns Process..........................................................................................................14Satellite guidance..................................................................................................................... 17

International instruments

There are two main international conventions relevant to the best interests of children. The first is the 1989 UN Convention on the Rights of the Child (UNCRC) and the second is the European Convention on Human Rights (ECHR).

Convention on the Rights of the Child

The first of these is a general convention that applies to all walks of life including the treatment of refugee children. The UK originally entered a ‘reservation’ against the Convention when becoming a signatory, stating that the Convention might not be applied in the context of immigration control. This reservation was removed in 2009.

A full copy of the Convention is available via the link provided in the resources guide. Articles particularly relevant to refugee children include the following:

Article 1For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 31. 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...

Article 71. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents...

Article 91. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the

parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 101. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

Article 121. 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.

It can be very helpful to cite these articles in immigration proceedings because they provide a useful framework for reference as to what might actually constitute best interests and as to the fundamental rights of children.

ZH (Tanzania)

The emphasis placed on the UNCRC in by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 means that the UNCRC cannot simply be ignored:

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 of children who are in the United Kingdom".

…

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"…

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 Minister for 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.

In addition, Lady Hale holds that there is a duty to consult and hear from affected children (paragraphs 34-37). As she found in EM (Lebanon) [2008] UKHL 64, this may on occasion call for separate representation of children and parents.

The entire judgment in ZH (Tanzania) flows from the obligations of the UNCRC. It is used to explain and interpret Strasbourg cases and shown to be the motivation

for the introduction of section 55. The UNCRC is therefore very far from being of academic interest.

Following ZH, the task of the Home Office and the tribunal is therefore as follows:

1. To consult affected children or at least ascertain their views and the impact removal would have on a child.

2. To ascertain what the best interests of a child might be in a given case.

3. To then weigh the best interests against other considerations, but in doing so not giving more weight to any other one consideration.

European Convention on Human Rights

The ECHR can be very important in determining the outcome of cases involving children. The most important Article of the ECHR for children cases is Article 8:

Article 81. Everyone has the right to respect for his private and family life, his home and his correspondence.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.

Article 8 can be very important in children cases both in respect of family life and private life. The right to a family life with one’s parents or carers is particularly important when considered from the perspective of a child, for whom the carer plays a completely central and dominant role. The wider aspects of private life, such as relationships with other people, being settled in a particular community and/or school and the attendant right to physical and moral integrity is often overlooked by the Home Office and even by judges but in fact carries just as much weight as other aspects of Article 8.

Cases

The judgment of the Supreme Court in ZH clearly references Article 8 ECHR, in particular Article 8(2). See also paragraph 22 of the Court of Appeal’s judgment in DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305, where Pill LJ states of Lady Hale’s judgment in ZH that he “cannot read her statements of principle as being confined to article 8(2) considerations” (the judgment is examined further below).

In practical terms, in seeking to explain to an Immigration Judge how to incorporate a consideration of the best interests of a child or children and how it

might affect the outcome of a case, probably the clearest exposition tying best interests of children into Article 8 is the tribunal determination in LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC)

27. The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives.  Previously Home Office policy tended to identify seven years of residence of a child as one that would presumptively require regularisation of immigration status of child and parents in the absence of compelling countervailing factors. That was really an administrative way of giving effect to the principle of the welfare of the child as a primary consideration in such cases and when it was considered that those interests normally required regularisation of the immigration position of the family as a whole. The policy may have been withdrawn but substantial residence as a child is a strong indication the judicial assessment of what the best interests of the child requires.  The UN Convention on the Rights of the Child 1989 Art 3 makes such interests a primary consideration. 28.   Although questions exist about the status of the UN Convention on the Rights of the Child in domestic law, we take the view that there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases.  A failure to treat them as such will violate Article 8(2) as incorporated directly into domestic law. 29.   It is regrettable that neither the Home Office reasons for the Article 8 decision nor the IJ’s reasons for dismissing the appeal begin to recognise any of the above.  We have no doubt that removal would represent a significant violation of the Article 8(2) right of respect for the family life that the appellant continues to enjoy with each member of his immediate family. 30.    In summary our conclusions are as follows: (i) The appellant was admitted to the UK lawfully to be with his wife and

children and had the reasonable expectation of being allowed to remain for this purpose while the remainder of the family was.

(ii) He applied in time for ILR for which he presumptively qualified but his failure to achieve ILR was entirely due to the application to him of a mandatory ground for refusal based on non-disclosure of a matter which might not have led to refusal on discretionary grounds if it had been disclosed.

(iii) His conduct in incurring those criminal convictions was not identified as a ground that makes his removal conducive to the public good, and it was not so relied on in the hearing before us.

(iv) It would not be reasonable to expect the wife and three children to give up their respective careers and prospects as a nurse, university student and school children doing well in secondary education and relocate to Zimbabwe where even in the absence of direct physical threat to them conditions are well known to be dire.

(v) The interests of the minor children and their welfare are a primary consideration in the balance of competing considerations in this case and

their educational welfare as part of the UK education system point strongly to their continued residence here as necessary to promote those interests.

(vi) Weighty reasons would be required to justify separating a father from his spouse and children, and no strong reasons for doing so have ever been identified.

(vii) Consistent application of the immigration rules to promote the economic and social policy of the UK is a relevant factor but the weight attached to it depends on the context of the case, whether there was ever any claim under the rules for indefinite leave to remain, and why such claim was not accepted.

(viii) In the particular circumstances of this case the weight to be attached to enforcement of immigration control is small in the light of the misdirection as to Paragraph 320 (7A), and the fact that the paragraph applies to all cases whether there is family life deserving respect or not .

(ix) No useful purpose would have been served if the SSHD had required the Appellant to depart the UK in order to make an entry clearance from abroad. All the issues are to be determined in this appeal rather than in the course of an investigation abroad where there would in any event be an interference.

See also the case of EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) (the latest CG case on Zimbabwe) in which the position of children is also addressed. The President gives guidance at paragraph 308(viii) as follows:

“In the absence of any other policy guidance from the Secretary of State, it remains legitimate for Immigration Judges to give some regard to the previous policy that seven years residence by a child under 18 would afford a basis for regularising the position of the child and parent in the absence of conduct reasons to the contrary, in making a judicial assessment of whether removal is proportionate to the legitimate aim having regard to the best interests of the child.”

Thus seven years of residence is re-established as an approximate rule of thumb, for better or for worse.

Lastly, also on Article 8, the European Court of Justice long ago held in Ciliz v Netherlands (Application no. 29192/95) [2000] ECHR 365; [2000] FLR 469 that it would be a breach of Article 8 to remove a person during pending family proceedings. This principle was upheld domestically in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, but the judgment rarely seems to have been followed by the Home Office and the passage of time seems to have undermined the judgment’s impact with Immigration Judges. This should end with the case of MH (pending family proceedings – discretionary leave) Morocco [2010] UKUT 439 (IAC), in which the tribunal held as follows (from the headnote):

1. In MS (Ivory Coast) [2007] EWCA Civ 133 it was accepted, following Ciliz v

Netherlands (Application no. 29192/95) [2000] ECHR 365; [2000] FLR 469, that a decision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR, in particular on the basis that removal of a parent/applicant during contact order proceedings would be unlawful because it prejudged the outcome of the contact proceedings and, more importantly, denied the applicant all possibility of any further meaningful involvement in the proceedings which may breach Article 6 ECHR.

 2. A refusal to adjourn proceedings before the Tribunal may have similar

consequences. 3. It is the respondent’s practice (consistent with the Human Rights Act

1998), not to remove or deport parent(s)/parties when family or other court proceedings are current and to grant short periods of discretionary leave, to extend temporary admission, or release a person pending the outcome of the family proceedings. The use of curtailment is discretionary in such circumstances (see Home Office Guidance re-issued in October 2010).

 4. Where such a case arises before the Tribunal it is usual for the appeal to be

allowed pursuant to Article 8 ECHR , rather than for the proceedings to remain within the Tribunal system to be adjourned, perhaps more than once. The respondent will normally then grant a short period of discretionary leave bearing in mind any relevant facts found by, or observations of an Immigration Judge. It is for the respondent to decide on the period of leave in each case.

 5. Where an application for contact (or a residence order, or for other relief)

is successful then a parent/party may make application for further leave to remain in the UK. If unsuccessful, then it will be for the respondent to consider what steps to take in relation to that individual.

Where there are pending family proceedings, any concurrent Article 8 based appeal in the immigration tribunal should be allowed and a short period of Discretionary Leave granted. If the family proceedings are concluded, the DL can be allowed to expire naturally or the UKBA can curtail the leave.

Statute

Section 55 of the Borders, Citizenship and Immigration Act 2009 provides as follows:

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, and(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a

function mentioned in subsection (2) are provided having regard to that need.

(2)The functions referred to in subsection (1) are—(a)any function of the Secretary of State in relation to immigration, asylum or nationality;(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;(c)any general customs function of the Secretary of State;(d)any customs function conferred on a designated customs official.

(3)A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

(4)The Director of Border Revenue must make arrangements for ensuring that—(a)the Director's functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and(b)any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.

(5)A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).

(6)In this section—“children” means persons who are under the age of 18;“customs function”, “designated customs official” and “general customs function” have the meanings given by Part 1.

(7)A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.

(8)Section 21 of the UK Borders Act 2007 (c. 30) (children) ceases to have effect.

Cases

The first case in which the section has been fully considered is R (on the application of TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) (26 October 2010). This was a third country removal case involving a minor. Wyn Williams J gave judgment. In summary:

The duty must be considered in every relevant case before a decision is made (para 24)

Section 55 must be considered before making removal decisions (para 25)

The words ‘safeguard and promote the welfare of children’ at least includes the following, set out in the statutory guidance (para 26-29):

o protecting children from maltreatment;

o preventing impairment of children's health or development (where health means 'physical or mental health' and development means 'physical, intellectual, emotional, social or behavioural development');

o ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and

o undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.

In discharging immigration and/or asylum functions concerning children the best interests of the child will be a primary consideration; it will not be the only consideration but the use of the word primary means that it will always be at least an important consideration (para 30-32).

The statutory guidance must be considered but reasons may be given for departing from it (para 33-36)

Where there is a serious dispute as to what is in the best interests of a child, a ‘balance sheet’ approach may be advisable, or at least something resembling it (para 51)

The best interests of the child may be a primary consideration but they are not the only consideration; other considerations may ultimately outweigh them (para 59).

The Court of Appeal recently considered section 55 for the first time, in the case of DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305.

LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005 is correct regarding age as a particular social group in Afghanistan, for child orphans at least

The Secretary of State is under an obligation to attempt proactively to ‘trace’ the family members of an unaccompanied child asylum seeker. This obligation is imposed by Article 19.3 of the Reception Directive (European Community Directive 2003/9/EC):

Article 19

Unaccompanied minors

1. Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities.

2. Unaccompanied minors who make an application for asylum shall, from the moment they are admitted to the territory to the moment they are obliged to leave the host Member State in which the application for asylum was made or is being examined, be placed:(a) with adult relatives;(b) with a foster-family;(c) in accommodation centres with special provisions for minors;(d) in other accommodation suitable for minors.Member States may place unaccompanied minors aged 16 or over in accommodation centres for adult asylum seekers.As far as possible, siblings shall be kept together, taking into account the best interests of the minor concerned and, in particular, his or her age and degree of maturity. Changes of residence of unaccompanied minors shall be limited to a minimum.

3. Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.

4. Those working with unaccompanied minors shall have had or receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in the national law, in relation to any information they obtain in the course of their work.

This contrasts markedly with the approach of the Upper Tribunal in the recent widely criticised HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) case, where the tribunal held that the obligation is on the child, not the Secretary of State. This new case effectively disapproves HK in this key respect as well as others.

The Secretary of State must consider the best interests of a child affected by an immigration decision. The obligation is imposed by section 55 of the Borders. Citizenship and Immigration Act 2009 and for the reasons set out in ZH (Tanzania). The failure to consider the best interests renders a decision unlawful and the immigration tribunal must allow such an appeal, with the effect of the matter being remitted to the Home Office for further consideration

Importantly, section 55 BCIA 2009 is justiciable before the immigration tribunal: see paragraphs 82 and 83:

82. In my judgment the AIT's determination was wrong in law for the short and simple reason that it did not include any consideration of that to which regard must be had under section 55, namely the need to safeguard and promote the welfare of the appellant as a child in the UK. By the time of the hearing, although not at the time of the Secretary of State's refusal, a determination such as that which the Tribunal undertook could not lawfully be conducted without regard to this factor.

83. I would therefore allow the appeal and remit the case to the Upper Tribunal for a further reconsideration hearing, in relation to which regard must be had to the factors relevant under section 55. The case is far from being one in which an outcome in favour of asylum for the appellant is a foregone conclusion, so that remitting the case would be a waste of time. To the contrary, the determination of the case will depend on a best interests assessment which has not yet been considered, on which co-operation from both parties will be needed for the Upper Tribunal to be able to discharge the obligation imposed by section 55.

See also para 24 of ZH (Tanzania) regarding justiciability of section 55 in the tribunal: “This means that any decision which is taken without having regard to the 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.”

The majority judgment in DS is that of Lord Justice Lloyd, with whose reasons Rimer LJ agrees. This case is an important one and will affect basically all children cases in the tribunal by effectively adding a new substantive argument and a new ground of appeal.

Guidance

Statutory guidance

It can be seen that section 55(3) provides for guidance to be given to which regard must be had. This is commonly referred to as the statutory guidance and can be found on the UKBA website and in the appendices to these notes.

At the time of writing the guidance was that issued in November 2009 and entitled, in full, Every Child Matters: Change for Children: Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children.

The guidance is generally considered weak, although it is in the guidance that the Home Office recognises that the best interests of children are a primary

consideration. However, there are other pieces of guidance that include more concrete obligations on the Secretary of State.

Main process guidance

The key official, public domain policy documents include the following:

UKBA Asylum Process Guidance, Processing an asylum application from a childhttp://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/specialcases/guidance/processingasylumapplication1.pdf?view=Binary

UKBA Asylum Process Guidance, Age assessmenthttp://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/specialcases/guidance/assessing-age?view=Binary

UKBA Asylum Process Guidance, Considering Applications for Further Leave (at Age 17 and a half) following Grants of Discretionary Leave under the Policy on Unaccompanied Asylum Seeking Children (Active Review) http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/specialcases/guidance/consideringapplications.pdf?view=Binary

UKBA Enforcement Instructions and Guidance, Chapter 26, Unaccompanied Childrenhttp://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/oemsectione/chapter26?view=Binary

Family Returns Process

The Home Office has recently introduced a new way of dealing with the return of families from the UK. It is called the ‘family return process’. If it is faithfully implemented by staff on the ground (a big ‘if’ after R (on the application of Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011) ), it represents a massive improvement on the previous approach, albeit one that does not definitively end the detention of children in all circumstances.

The main policy document is Chapter 45 of the Enforcement Guidance and Instructions. It begins by setting out key principles:

The new process must take full account of our duty to have regard to the need to safeguard and promote the welfare of children in the UK in accordance with our statutory and international obligations.

The new process must treat families with children humanely and with compassion.

Independent expertise should be brought to bear at the most difficult stages of the process.

Families with no legal right to be in the country need to leave.

Parents should have the opportunity to make choices about the manner and timing of their departure.

The new approach must be affordable.

There is a clear emphasis on the duty to safeguard and promote the welfare of children is very welcome and a new escalation process is introduced for family removals, consisting of three stages:

Assisted Return – We will ensure that families have a dedicated Family Return Conference to discuss future options and the specific option of assisted return.  We will examine how best to bring strong family engagement skills to bear  at these conferences and when engaging families throughout the process.

Required Return – We will give families who do not choose to take up the offer of assisted return at least two weeks’ notice of the need to leave the country and the opportunity to leave under their own steam via a self check in return without any enforcement action.  This extended notification period – up from 72 hours – will ensure that the family can prepare properly for their return and give them time to raise any further issues or seek further legal redress.

Ensured Return – Only once the new assisted and required stages have been exhausted, will we consider enforcement action: our aim is for families to depart before reaching this stage of the process. An independent Family Returns Panel will help to ensure that individual return plans take full account of the welfare of the children involved.

There is some interesting material exhorting UKBA staff to consider the wishes and feelings of affected children, which is very much in line with what Baroness Hale says at the end of her judgment in ZH (Tanzania):

“Case Owners must take account of the views of any children likely to be affected by a decision of the UK Border Agency. Provided they are able and willing to do so properly, the role of representing those views to UKBA should be performed by the child’s parent(s), or any other accompanying adult who has parental responsibility for the child.

However, the UK Border Agency should not assume that the best interests of a child, on the one hand, and those of its parents (or any adult with parental

responsibility for the child), on the other, will be the same. Where those interests are not aligned, appropriate steps must be taken to elicit and assess the child’s views, as well as those of the parent(s) or any other adult with parental responsibility for the child.”

There is still basically nothing on appeals and how or whether children should be questioned by a Presenting Officer. This remains a real lacuna. The view of UKBA seems to be that the Immigration Judge can be expected to police hearings, but experience shows that this is an inadequate safeguard.

A new Independent Family Returns Panel has also been created to advise UKBA on family cases:

“The purpose of the Panel is to provide independent advice to the UK Border Agency on the method of removal from the UK of individual families when an ensured return is necessary. The advice provided by the Panel will help to ensure that individual return plans take full account of the welfare of the children involved and that the UK Border Agency fulfils its responsibilities under section 55 of the Borders, Citizenship and Immigration Act 2009.

The Panel will publish an annual report on the advice it has given, including information on any cases where the method of return differed from that advised by the Panel.

The Panel will also consider the overall handling of families who are denied entry to the UK at the border to assess whether detention in such cases is being kept to a minimum.”

The initial membership looks to be high powered and well qualified.

A host of related policy documents have also been posted to the UKBA website, including:

A new Asylum Policy Instruction on Processing Family Cases

A new webpage about the Independent Family Returns Panel

A pdf document entitled Independent Family Returns Panel: how it will work

A document on transitional arrangements for existing cases

The proof of a pudding is in the eating. Senior figures at UKBA and the Minister himself seem very serious about this new process and the policies described above represent a serious attempt to enforce cultural change on UKBA. It would be welcome if we could see a similar all-out effort to improve decision making in family cases before the removal stage is reached. At the moment there are some woeful decisions still cropping up where no consideration at all is given to the effect of removal on one of their parents on affected children.

Satellite guidance

There also seem to be subsidiary, unpublished policies. For example, the Criminal Casework Directorate introduced a policy entitled Children and Family Cases Process Instruction. It can be found on the Free Movement blog or on the What Do They Know? website and was obtained through a Freedom of Information request.

Highlights include the following:

The need to safeguard children is very explicit and includes a commitment to ‘enable those children to have optimum life chances and to enter adulthood successfully’ (section 1). This does not override the need for deportation/removal in some cases but has to be properly considered – which it most certainly is not in many cases I deal with.

There is a clear whistleblowing procedure for UKBA staff, which has to be a good thing.

The policy helpfully reminds UKBA staff that:

‘In dealing with appeals, judicial reviews and additional applications, it is all too easy to lose sight of children’s need to have contact with their parents or guardians who are facing detention, removal or deportation from the UK.’

It goes on to state that Children’s Services and if relevant CAFCASS should be consulted (sections 1, 2.2, 2.2.1 and 2.2.2). This is ‘in order to discharge our duty to safeguard and promote the welfare of children’, i.e. it is not an optional extra, it is part and parcel of the new section 55 duty. I’ve never seen any evidence of this in any of the cases I have dealt with involving children and it seems very unlikely this happened in the appalling and recent T case.

In cases where a family may be split, the local Safeguarding Children Co-ordinator and the UKBA Office for the Children’s Champion should always be consulted (section 3.1.1).

There are suggestions that a child and spouse be deported alongside the main deportee as a way of avoiding splitting the family.

It is suggested that UKBA be proactive about gathering evidence of family ties (section 2.2.3), which is to be welcomed.

The effect of a split in the family on an affected child must be considered (3.1.2):

‘In those cases where we do not propose to deport or otherwise remove some family members in the UK (and their nationality is immaterial) the appropriate parties (see section 1.1) must be consulted for advice on the

effect of the split on the child. It is essential that enquiries are made, prior to referral if possible, to ensure that as much background information can be provided with respect to the potential effect of our actions on any children. It is important that staff also consider (and consult) whether there is any effective legal or welfare barrier to the family member(s) accompanying or joining the deportee on a voluntary basis. This will also have the effect of allowing these issues to be considered at any appeal against the deportation decision.’

Section 4 deals with the detention of children. The policy does seem to recognise that there is an alternative to detaining a child other than taking the child into social services care: not detaining the child.

There is a section on making enquiries about adequate care arrangements in the country of origin for unaccompanied children (section 5).

Section 7 deals with ongoing family proceedings in the family courts and indicates that in many cases removal will be delayed until such proceedings are concluded.

Charlotte Bayati and Colin YeoRenaissance Chambers