Wed, 08 Dec 2010
Manjit Gill QC and Edward Nicholson in Supreme Court case on children’s best interests
Judgment is currently awaited in ZH (Tanzania) v SSHD (UKSC 2010/0002), which was heard by the Supreme Court on 9-10 November 2010. The panel comprised Lord Hope, Lady Hale, Lord Brown, Lord Mance and Lord Kerr.
The principal issues were:
(1) Whether the British citizenship of children to a mother who is removed is a special or decisive factor under Article 8 ECHR.
(2) Whether the fact that the father of the children is practically unlikely to be able to visit them abroad means that his Article 8 rights should prevail over the interest in deportation.
Shortly before the hearing, the Secretary of State accepted in her Written Case that on the facts, the Asylum and Immigration Tribunal had been wrong to dismiss the Article 8 appeal and the Court of Appeal had erred in upholding the Tribunal’s determination. The purpose of the hearing was therefore to give guidance on the issues.
At the hearings before the Tribunal and the Court of Appeal the Appellant’s children had not been separately represented. However shortly before the hearings in November the Supreme Court granted the children permission to intervene in the proceedings.
In particular, issue (1) inevitably covered the concept of “the best interests of the child”, how this should be evaluated, and what effect it should have in an immigration context. The Court’s judgment could however affect a number of related areas of law where best interests issues arise. The arguments ranged across Section 55 of the Borders, Citizenship and Immigration Act 2009, the United Nations Convention on the Rights of the Child, the European Union Charter of Fundamental Rights, various General Comments of the United Nations Human Rights Committee and the United Nations Committee on the Rights of the Child, and judicial decisions such as M v State (South African Constitutional Court) (Case CCT 53/06), (2007) 23 BHRC 697, Chen v SSHD (ECJ) (Case C-200/02),  QB 325 and Neulinger and Shuruk v Switzerland (ECtHR) (GC) (Application No. 41615/07),  28 BHRC 706.
Judgment was reserved.