The UK Supreme Court has handed down a landmark judgment on the rights of children in cases of deportation. ZH (Tanzania) v. Secretary of State for the Home Department concerned the appeal of a mother on the ground that deporting her from the UK would disproportionately interfere with her Article 8 of the European Convention on Human Rights ("the ECHR") right to respect for private and family life. The central issue was the effect her deportation would have on her two young children, who were UK citizens.
In unanimously allowing the appeal, Lady Hale's lead judgment centered on international law in assessing what the "best interests of the child" are. The Court found that in making the proportionality assessment under Article 8 ECHR, the best interests of the child as set out in the UN Convention on the Rights of the Child 1989 ("the UNCRC"), to which the UK is a signatory, must be paramount. Lady Hale added that the children should also be consulted for their views.
The Court outlined that under UK immigration legislation there is no power to deport a person who is a UK citizen. If a non-citizen parent is compulsorily removed and agrees to take her children with her, the children effectively have "little or no choice in the matter". The two children, as UK citizens, enjoyed "an unqualified right of abode" in the UK. If deported they would "lose the advantages of growing up and being educated in their own country, their own culture and their own language". Lady Hale highlighted that while the best interests of the child can be outweighed by the cumulative effect of countervailing considerations, such considerations in this case were not the fault of the children. Concluding that "children can sometimes surprise one", Lady Hale ordered for the appeal to be allowed.
Interestingly, the Secretary of State had conceded the matter by the time of the hearing. The Supreme Court nevertheless decided the matter to expound the general principles to be applied in these decisions. PILA will be producing materials on the doctrine of mootness and public interest matters in coming months.
Two days after this UK Supreme Court judgment, the Irish High Court granted leave to a single mother to appeal a government decision to deport her to Brazil. Based on similar grounds to the above case, it was argued that this could lead to the "constructive deportation" of her young son, an Irish citizen. The case is one of many which the courts are facing involving the deportation of parents of children who are Irish citizens. Ireland ratified the UNCRC in 1992 and there have been repeated calls for a constitutional referendum on children's rights
In granting leave to appeal, Mr. Justice Ryan outlined that the Minister had "failed to consider and weight correctly the balance of opposing interests of the applicants and the State, the possibility that the deportation of the applicant would constitute a de facto or constructive deportation of her Irish citizen child". The Judge outlined that the Minister failed to sufficiently inquire into the practical consequences of the child relocating to Brazil. This echoes Lady Hale's observation that the decision-maker must ask whether it was reasonable to expect the child to live in another country and that it was "not enough to say that a young child may readily adapt".
The Immigrant Council of Ireland, providing legal support to the applicant, has called for law reform so that clear and fair rules spell out the rights to family life for Irish citizens and immigrants. Please click here to read more about the Immigrant Council of Ireland's work.
To view the Irish Times article on the case, please click here.
PILA readers may be interested to note the seminar on Contemporary Issues in Child and Family Law on 12 February 2011 described in the Bulletin .