Are Children's Best Interests Really Best? ZH (Tanzania) (FC) v Secretary of State for the Home Department

DOIhttp://doi.org/10.1111/j.1468-2230.2011.00879.x
Date01 November 2011
AuthorJane Fortin
Publication Date01 November 2011
Are Children’s Best Interests Really Best? ZH (Tanzania)
(FC) vSecretary of State for the Home Department
Jane Fortin*
Although the Supreme Court’s decision in ZH (Tanzania) is an important one, as this note
explains, it is less novel than many suppose – and is in some ways disappointing.By stressing the
importance of immigrant children’s best interests, it fails to use this opportunity to promote their
Convention rights effectively.
INTRODUCTION
‘This mother’s immigration history has rightly been descr ibed as “appalling” ’.1
Lady Hale’s words hardly endear one to the subject of the Supreme Court’s
decision in ZH (Tanzania) (FC) vSecretary of State for the Home Department2(ZH).
Nevertheless this mother had two young children and the removal of an illegal
immigrant like her may often amount to the constructive removal of her children
as well. She takes the children with her only because they cannot look after
themselves once she has left. But from the children’s point of view, their relo-
cation is neither voluntary nor in their best interests. As J. Bhabha comments,
‘[t]his is an extremely severe sanction inf‌licted on an innocent party, a vivid
example of the invisibility of the child’s perspective. For what could be more
devastating for a child than the loss of a parent or a home?’3
The Supreme Court’s decision in ZH is certainly extremely welcome – given
its overriding message that children’s best interests may sabotage the Secretary of
State for the Home Department (SSHD)’s plans to remove one or both of their
parents. Its underlying message is that children cannot be blamed for anything
their parents have or have not done.One wonders, however,whether the r uling
has truly bolstered ‘the rights of children born to illegal immigrants’ as claimed.4
It is also questionable whether this decision will have any long-term inf‌luence on
the development of children’s rights in a more general context.
*Professor of Law,Sussex University.I gratefully acknowledge the assistance of Steve Symonds of ILPA,
Professor Gillian Douglas, DrYuri Borgmann-Prebil and, above all, Alison Harvey of ILPA, in the
preparation of this article.The views expressed in it, and the mistakes,are all mine.
1ZH (Tanzania) vSecretary of State for the Home Department [2011] UKSC 4 at [5].
2ibid.
3 J. Bhabha, ‘The “Mere Fortuity of Birth”? Children, Mother s, Borders, and the Meaning of
Citizenship’ in S. Benhabib and J. Resnik (eds), Migrations and Mobilities (New York: New York
University Press, 2009) 192.
4 ‘The landmark human r ights ruling from the UK supreme court on the rights of children born to
illegal immigrants.’ The Guardian 1 February 2011. See also,A. Wagner,‘Supreme Court bolster s
rights of children in deportation cases’ UK Human Rights Blog 1 February 2011 at http://
ukhumanrightsblog.com/2011/02/01/ (last visited 15 August 2011).
Jane Fortin
© 2011 TheAuthor.The Moder n Law Review© 2011 The Modern Law Review Limited. 947(2011) 74(6) MLR 932–961

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