Article 3(1) of the United Nations Charter on the Rights of the Child (UNCRC) states “In all actions concerning the child, whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration…”
The UK also lifted its reservation to follow the UN Convention on the best interest of children a decade ago which means that the UK also has immigration rules and treaties with other countries to keep the best interest of a child or group of children. Section 55 of the Borders, citizenship and immigration act 2009 in fact mandates Home Office and others to keep the best interest of children while making a decision. This is to safeguard
and look after the welfare of immigrant children to the UK.
Supreme Court’s new decision in the best interest of children
The Supreme Court of UK while handing down judgment in a case made important findings that should be kept in mind by authorities when considering an application related to child/children to the Home Office.
- Under the immigration rules, it should be considered that whether a child has lived in the UK for 7 years continuously or not irrespective of any record of the criminality of the child’s parent. If a child has lived for 7 years continuously in the UK and it can be demonstrated, he/she should be granted leave to remain in the UK if it is in the best interest of the child and it would be unreasonable for the child to leave the UK even if the child’s parents are found to be guilty of criminality or misconduct.
- If it can be demonstrated that a child has lived in the UK for 7 years continuously and it would be unreasonable for the child to leave the UK, a parent should also be granted leave to remain in the UK if he/she shares a genuine and subsisting relationship with the child.
- Generally, it is considered that it would be reasonable for a child to leave the UK if the child’s parents are to be removed from the UK. Supreme Court noted that if it would be unreasonable for the child to leave the UK with his/her parents, the child/parents should be granted leave to remain in the UK.
ZH (Tanzania) v SSHD (2011) – that – “in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.”
It is important to note that the child’s best interest is “a primary consideration” and not the only or paramount consideration. So cases relying on the child’s best interest need to show why and how the child’s interest would be compromised. The Home Office will also consider other factors which may outweigh the best interest, for example in cases
where a person may have been given a criminal sentence for more than 4 years – so the public interest may outweigh the best interest of the child. It all depends on the personal circumstances of individual cases.
If you are looking for support of representing your application in the best interest of the children, please do not hesitate to contact Visa and Migration Ltd on 02034111261