Zoumbas v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Hodge |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] UKSC 74 |
| Date | 27 November 2013 |
| Docket Number | No 4 |
| Court | Supreme Court |
[2013] UKSC 74
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Toulson
Lord Hodge
Appellant
Mark Lindsay QC
Stephen Winter
(Instructed by Drummond Miller LLP)
Respondent
Lorna Drummond QC
Andrew Webster
(Instructed by Office of the Advocate General)
Heard on 28 October 2013
Lord Hodge, delivering the judgment of the court
This is the judgment of the court. The appellant, Mr Zoumbas, challenges a decision by the Secretary of State for the Home Department dated 4 October 2011 that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He challenged the Secretary of State's decision for the manner in which she dealt with the best interests of his children in the light of the decision of this court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. He was unsuccessful in his judicial review application before both the Lord Ordinary, Lady Clark of Calton, and an Extra Division of the Inner House of the Court of Session.
The judicial review application and this appeal are concerned only with the fifth of the questions which Lord Bingham of Cornhill set out in para 17 of his speech in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. That is, in this case, whether the interference with the family life of Mr Zoumbas' family unit by his removal to the Republic of Congo was proportionate to the legitimate public end which the Secretary of State sought to achieve.
Before this court Mr Zoumbas made his challenge in three parts. First, he submitted that the Secretary of State had erred by failing to have regard to the interests of his children as a primary consideration in the proportionality assessment under article 8 of the European Convention on Human Rights ("ECHR"). This entailed, he submitted, a breach of the Secretary of State's duty under section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"), which required her to make arrangements for ensuring that her functions in relation to immigration were discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. He suggested that this amounted to punishing the children for their parents' poor immigration history. Secondly, he criticised the Secretary of State's findings in relation to the best interests of the children. He asserted that (i) she had failed to make clear findings, (ii) it was irrational to conclude that the children's best interests would be served by their removal to the Republic of Congo, (iii) she had failed to carry out a careful examination of their best interests, and (iv) the findings assumed that he and his wife would be returned to the Congo. Thirdly, in a submission which depended on the success of either or both of the first and second submissions, he argued that the Secretary of State had erred in concluding under paragraph 353 of the Immigration Rules that further representations made by him did not have a realistic prospect of success before an immigration judge.
Mr Zoumbas and his wife have an unedifying immigration history. They are citizens of the Republic of Congo. He entered the United Kingdom illegally on 27 May 2001 using a French passport that did not belong to him. He claimed asylum and was granted temporary admission. The woman who became his wife entered the United Kingdom on 30 July 2002 using a forged French passport. She also claimed asylum. Their claims for asylum were refused and her appeal was dismissed. On 7 November 2003 they married. Mrs Zoumbas initiated an appeal under article 8 ECHR, which was refused. Mr Zoumbas' appeal against the refusal of his asylum claim was also refused. Their eldest child, Angemarcel Massengo Fleury, was born on 27 April 2004.
On 8 April 2005 Mr Zoumbas was considered for the family indefinite leave to remain exercise but was found not to be eligible. In October 2005 Mrs Zoumbas and Angemarcel were detained and removed to the Republic of Congo. That same month, Mr Zoumbas failed to report to the immigration authorities and was treated as an absconder. For several months the authorities did not know his whereabouts.
On 31 March 2006 Mrs Zoumbas and Angemarcel returned to the United Kingdom illegally using passports and a residence permit that did not belong to them. Mrs Zoumbas claimed asylum again and named her husband and Angemarcel as dependents in her claim. In about August 2006 Mr Zoumbas started to report to the immigration authorities again. On 25 May 2006 the Secretary of State refused Mrs Zoumbas' asylum claim. She appealed but her appeal was dismissed on 24 July 2006. She was granted a statutory review of her appeal but on 3 July 2007 the First-tier Tribunal refused her appeal after a reconsideration hearing.
On 3 February 2007 Mrs Zoumbas gave birth to a daughter, Rosangel Shekma Massengo Fleury, and on 14 April 2011 she gave birth to another daughter, Shaun Keziah Massengo Fleury. Mr and Mrs Zoumbas did not have permission to work. They received state benefits because Mr Zoumbas claimed that he was destitute. But between September 2008 and April 2010 credits of £27,693.75 from unidentified sources were paid into bank accounts of Mrs Zoumbas and of the older two children.
On 22 June 2010 Mr Zoumbas submitted further representations in which he asserted that there had been a change of circumstances because he, his wife and his children had been in the United Kingdom for several years and had established a family and private life which should be respected under article 8 ECHR. Documents which accompanied his representations showed that the eldest child, Angemarcel, was at primary school, that Mrs Zoumbas was attending college, and that they were members of a church, all in Glasgow.
By letter dated 4 October 2011 the Secretary of State intimated to Mr Zoumbas her decision that his representations did not qualify him for asylum or humanitarian protection and that he did not merit a grant of limited leave to enter or remain in the United Kingdom. She also held that his submissions would not amount to a fresh claim under paragraph 353 of the Immigration Rules because they did not create a realistic prospect of success before an immigration judge. Mr Zoumbas has challenged that decision in his application for judicial review.
In their written case counsel for Mr Zoumbas set out legal principles which were relevant in this case and which they derived from three decisions of this court, namely ZH (Tanzania) (above), H v Lord Advocate 2012 SC (UKSC) 308 and H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338. Those principles are not in doubt and Ms Drummond on behalf of the Secretary of State did not challenge them. We paraphrase them as follows:
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
These principles arise from the United Kingdom's international obligations under the United Nations Convention on the Rights of the Child, and in particular article 3.1 which provides:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
That general principle of international law has influenced the way in which the Strasbourg court has interpreted the ECHR: Neulinger v Switzerland (2010) 28 BHRC 706, para 131.
Mr Lindsay for Mr Zoumbas also founded on a statement in...
To continue reading
Request your trial
-
Huu Dinh Nguyen v The Secretary of State for the Home Department
...CJEU in Ruiz Zambrano (C-34/09), [2012] QB 265 (because Amy is British) and to the principle stated by Lord Hodge in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, that "a child must not be blamed for matters for which he or she is not responsible......
-
AM (by His Father CM) v The Secretary of State for Work and Pensions
...of children. There is much authority about this. Mr Wise took us this morning to the recent decision of the Supreme Court in Zoumbas [2013] 1 WLR 3690. Zoumbas, like other leading cases on the impact of children's interests, concerned the application of the proportionality test to the quest......
-
The Secretary of State for Work and Pensions Appellant v R DA and Others
...be one which is in the best interests of the children. As Lord Hodge put it in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690 para.10: “… the best interests of a child must be a primary consideration, although not always the only primary consideration......
-
R (MQ) v The Secretary of State for the Home Department
...added) 131 The Court undertook a comprehensive review of the section 55 authorities and restated the principles set out in Zoumbas v SoS [2013] UKSC 74 by Lord Hodge: (1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR. (2) In makin......
-
Making the best interests of the child a substantive human right at the centre of national level expulsion decisions
...4 [23].15. JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) [6].16. Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 [10] (emphasis added).17. ZH (Tanzania) (n 14), [26].18. ibid [29].19. Jacobsen (n 8) 553.20. Ciara Smyth, ‘The Best Interests of the Child in......