ZH (Tanzania) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLADY HALE,LORD KERR,LORD HOPE,Lord Mance,Lord Brown
Judgment Date01 Feb 2011
Neutral Citation[2011] UKSC 4

[2011] UKSC 4

THE SUPREME COURT

Hilary Term

On appeal from: [2009] EWCA Civ 691

Before

Lord Hope, Deputy President

Lady Hale

Lord Brown

Lord Mance

Lord Kerr

ZH (Tanzania) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellant

Manjit Gill QC

Benjamin Hawkin

(Instructed by Raffles Haig Solicitors)

Respondent

Monica Carss-Frisk QC

Susan Chan

(Instructed by Treasury Solicitors)

Interveners (for the Appellant's children)

Joanna Dodson QC

Edward Nicholson

(Instructed by Raffles Haig Solicitors)

Heard on 9 and 10 November 2010

LADY HALE (with whom Lord Brown and Lord Mance agree)

1

The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this, however, is a much more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave? There is, of course, no power to remove or deport a person who is a United Kingdom citizen: see Immigration Act 1971, section 3(5) and (6). They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance: see 1971 Act, sections 1 and 2. The consistent stance of the Secretary of State is that UK citizens are not compulsorily removed from this country (eg Phil Woolas, Hansard, Written Answers, 15 June 2009). However if a non-citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views.

The facts
2

The facts of this case are a good illustration of how these issues can arise. The mother is a national of Tanzania who arrived here in December 1995 at the age of 20. She made three unsuccessful claims for asylum, one in her own identity and two in false identities. In 1997 she met and formed a relationship with a British citizen. They have two children, a daughter, T, born in 1998 (who is now 12 years old) and a son, J, born in 2001 (who is now nine). The children are both British citizens, having been born here to parents, one of whom is a British citizen. They have lived here with their mother all their lives, nearly all of the time at the same address. They attend local schools.

3

Their parents separated in 2005 but their father continues to see them regularly, visiting approximately twice a month for 4 to 5 days at a time. In 2007 he was diagnosed with HIV. He lives on disability living allowance with his parents and his wife and is reported to drink a great deal. The tribunal nevertheless thought that there would not "necessarily be any particular practical difficulties" if the children were to go to live with him. The Court of Appeal very sensibly considered this "open to criticism as having no rational basis". Nevertheless, they upheld the tribunal's finding that the children could reasonably be expected to follow their mother to Tanzania: [2009] EWCA Civ 691, para 27. They also declined to hold that there was no evidence to support the tribunal's finding that the father would be able to visit them in Tanzania, despite his fragile health and limited means: para 32.

4

As it happens, this Court has seen another illustration of how these issues may arise, in the case of R (WL) (Congo) v Secretary of State for the Home Department [2010] 1 WLR 2168 (Supreme Court judgment pending). Both father and mother are citizens of the Democratic Republic of Congo. Their child, however, is a British citizen. The Secretary of State intends to deport the father under section 3(5) of the 1971 Act and also served notice of intention to deport both mother and child. There is power to deport non-citizen family members of those deported under section 3(5) but there is no power to deport citizens under that or any other provision of the 1971 Act. It is easy to see how a mother served with such a notice might think that there was such a power and that she had no choice. Fortunately, it appears that the notice was not followed up with an actual decision to deport in that case.

These proceedings
5

This mother's immigration history has rightly been described as "appalling". She made a claim for asylum on arrival in her own name which was refused in 1997 and her appeal was dismissed in 1998, shortly after the birth of her daughter. She then made two further asylum applications, pretending to be a Somali, both of which were refused. In 2001, shortly before the birth of her son, she made a human rights application, claiming that her removal would be in breach of article 8 of the European Convention on Human Rights. This was refused in 2004 and her appeal was dismissed later that year. Also in 2004 she and the children applied for leave to remain under the "one-off family concession" which was then in force. This was refused in 2006 because of her fraudulent asylum claims. Meanwhile in 2005 she applied under a different policy known as the "seven year child concession". This too was refused, for similar reasons, later in 2006 and her attempts to have this judicially reviewed were unsuccessful.

6

After the father's diagnosis in 2007, fresh representations were made. The Secretary of State accepted these as a fresh claim but rejected it early in 2008. The mother's appeal was dismissed in March 2008. However an application for reconsideration was successful. In May 2008, Senior Immigration Judge McGeachy held that the immigration judge had not considered the relationship between the children and their father (it being admitted that there was no basis on which he could have found that they could live here with him), the fact that they had been born in Britain and were then aged nine and seven and were British. It was a material error of law for the immigration judge not to have taken into account the rights of the children and the effect of the mother's removal upon them.

7

Nevertheless at the second stage of the reconsideration, the tribunal, having heard the evidence, dismissed the appeal: Appeal Number IA/01284/2008. They found that there was family life between the mother and the children and between the father and the children, although not between the parents, and also that the mother had built up a substantial private life in this country (para 5.3). Removal to Tanzania, if the children accompanied the Appellant, would substantially interfere with the relationship with their father; staying behind would substantially interfere with the relationship with their mother (para 5.4). Removing the mother would be in accordance with the law for the purpose of protecting the rights and freedoms of others. The only question was whether it would be proportionate (para 5.5).

8

The Tribunal found the mother to be seriously lacking in credibility. She had had the children knowing that her immigration status was precarious. Having her second child was "demonstrably irresponsible" (para 5.8). However, the children were innocent of their parents' shortcomings (para 5.9). The parents now had to choose what would be best for their children: "We do not consider that it can be regarded as unreasonable for the respondent's decision to have that effect, because the eventual need to take such a decision must have been apparent to them ever since they began their relationship and decided to have children together." (para 5.10).

9

The Tribunal found it a "distinct and very real possibility" that the children might remain here with their father (para 5.11). This might motivate him to overcome his difficulties. People with HIV can lead ordinary lives. The daughter was of an age when many African children were separated from their parents and sent to boarding schools. The son, had he been a Muslim, would have been regarded as old enough to live with his father rather than his mother. Hence the tribunal could not see "any particular practical difficulties" if the children were to go and live with their father (para 5.15).

10

Equally, it would be "a very valid decision" for the children to go and live with their mother in Tanzania (para 5.16). It is not an uncivilised or an inherently dangerous place. Their mother must have told them about it. There were no reasons why their father should not from time to time travel to see the children there. They did not accept that either his HIV status or his financial circumstances were an obstacle. Looking at the circumstances in the round, therefore, "neither of the potential outcomes of the appellant's removal which we have outlined above would represent such an interference with the family life of the children, or either of them, with either their mother on the one hand or their father on the other as to be disproportionate, again having regard to the importance of the removal of the appellant in pursuance of the system of immigration control in this country" (para 5.20). They had earlier said that this was "of very great importance and considerable weight must be placed upon it" (para 5.19).

11

Permission to appeal was initially refused on the basis that, even if the Tribunal had been wrong to think that the children could stay here with their father, they could live in Tanzania with their mother. Ward LJ eventually gave permission to appeal because he was troubled about the effect of their leaving upon their relationship with their father: "how are we to approach the family rights of a broken family like this?" Before the Court of Appeal, however, it was argued that the British citizenship of the children was a "trump card" preventing the removal of their mother. This was rejected as inconsistent with the authorities, and in...

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