Court of Appeal Considers the Best Interests of a British Child of a Foreign National Prisoner

Wed, 22 May 2013

The Court of Appeal has handed down judgment in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550. The Court had considered the “pressing social need” to deport foreign national prisoners weighed as against the statutory basis for ensuring that the best interests of a British child of a foreign national remain a primary consideration, in accordance with section 55 Borders, Citizenship and Immigration Act 2009. 
 
The Court dismissed the Appellant’s appeal, but agreed with some of the submissions made that had sought an enhanced and extended meaning to the requirement to “evaluate, ascertain and discover” the best interests of the child so that they could be promoted and safeguarded. 
 
Commenting on the "practical bite” as being dependent upon the nature of the case at hand, Lord Justice Laws said (with whom Lady Justice Black and Mann J agreed), 
 
“A principal focus of Mr Mahmood’s argument, consistent with the grant of permission by Elias LJ, was the need for a proper “evaluation, discovery or ascertainment of the best interests of the child”. The means of achieving this necessity was, he submitted, through the imperatives of s.55 of the 2009 Act and in particular the guidance – “Every Child Matters – Change for Children” – issued in November 2009 under s.55(3). It will be recalled that HHJ Thornton referred to this document in Tinizaray. Much of the guidance is, with great respect, cast in relatively general terms. Mr Mahmood referred in particular to paragraphs 1.16 and 2.7. The former contains a list of prescriptions for “work with children and families” which, among other things, should be “child centred” and “holistic in approach”. The latter sets out principles which the UKBA should follow. The first of these is “Every child matters even if they (sic) are someone subject to immigration control”. The second, citing the UNCRC and reflecting the decision in ZH, states that “the best interests of the child will be a primary consideration”.
 
The concrete proposition which I think Mr Mahmood draws from the guidance, and some of the learning, is that in determining an Article 8 claim where a child’s rights are affected, the child’s best interests must be properly gone into: that is to say they must be treated as a primary consideration, and the court or tribunal must be armed – if necessary by its own initiative – with the facts required for a careful examination of those interests, and where in truth they lie. Mr Mahmood submits that was not done in this case.
 
While in very general terms I would not quarrel with this proposition (though I consider that the circumstances in which the tribunal should exercise an inquisitorial function on its own initiative will be extremely rare), its practical bite must plainly depend on the nature of the case in hand. It is necessary to consider the deportation of foreign criminals as a particular class of case; and, of course, the circumstances of this case itself.”
 
This case is therefore likely to enable certain applicants that appear before the Upper Tribunal and First Tier Tribunal to contend that the Tribunal itself ought to take an inquisitorial role, in compliance with its Human Rights Act duties, to both promote and safeguard the best interests of relevant children in accordance with the statutory requirements set out in section 55 Borders, Citizenship and Immigration Act 2009. It would not therefore appear sufficient in those hearings, as was previously the case, to merely leave the collation of evidence and documents to the Appellant alone.
 
Abid Mahmood appeared for the Appellant and was instructed by Fountain Solicitors, Walsall,West Midlands (reference RS/JB). 
 
Please click here to view Abid Mahmood's profile

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