QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street
B e f o r e :
| The Queen on the application of Mansoor
|- and -
Secretary of State for the Home Department
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Mr Mandalia (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
Crown Copyright ©
Mr Justice Blake:
The factual background
"An applicant is not treated as having recourse to public funds by relying on public funds provided to the sponsor in his or her own right provided that the applicant's presence in the United Kingdom has not resulted in increased entitlement for the sponsor."
HC 395 para 6A, inserted by Command 4851 in 2000, is cited as authority for that proposition.
"There is no overall breach of human rights. The appellant can return to the Yemen with her children and /or her husband and apply from there if she wishes to re-enter."
"Here the appellant and her seven children had enjoyed a family life in Yemen. They had enjoyed it with the sponsor/husband prior to 1998 when he came to the United Kingdom. They enjoyed it for seven years until she came to the United Kingdom. They had enjoyed it with each other and with the sponsor/husband in the United Kingdom sending money back. They have only had two years in which permission was granted for them to remain in the United Kingdom. Permission was always conditional and not certain. There is no illegality here, I acknowledge, but that is not the same as the claim that they have any legitimate expectancy to remain simply because they have been here. They can continue to enjoy that previous state of affairs back in Yemen. Indeed there is no bar whatsoever to the husband also going back to Yemen. They can continue contact and can visit, communicate and maintain family ties. This is not a breach which tears the family asunder. Accordingly I dismiss this appeal."
"It is submitted that if Mrs Mansoor is required to return to the Yemen at this stage then this would cause insurmountable difficulties for her children. At present Mrs Mansoor is very much involved with the day-to-day care of her youngest children and is also emotionally attached to all of her children. If she is required to return to Yemen at this stage, then this will severely disrupt her private and family life having a major impact on her husband and children. She is a law-abiding citizen and has made every effort to integrate into the British way of living. Moreover it is submitted that Mrs Mansoor's youngest children who are mainly dependent on her are innocent victims of their circumstances. The children are settled in school and cannot return to Yemen at this stage without disrupting their education if they were to accompany their mother. Therefore in the interests of fairness and justice it is only just and right for Mrs Mansoor's youngest children not to be separated from her."
Further representations were made about the obstacles to be faced if the entry clearance route that the Immigration Judge had in mind was to be followed.
(i) it was not accepted that family life was enjoyed between the children over 18, who were last known of as living in the same household as the claimant and her husband;
(ii) the children under 18 were of an adaptable age who could adapt to life in the Yemen and returned whence they came;
(iii) there are no insurmountable obstacles to the husband and children returning to the Yemen and there will be no problems in doing so;
(iv) the conclusions of the IJ previously quoted are repeated and emphasise that contact can be made by visits and such like.
"The main general criteria for discretionary registration are that the child's future should clearly be seen to lie in the UK, that there are close connections (either through a parent or otherwise) and that the child of 13 or over has lived in the United Kingdom for two years"
"In reaching this decision your clients rights have been balanced against the wider rights and freedom of others in the general public interest. Specifically we have weighed up the extent of the possible interference with her private/family life and with particular regard to her length of residence against the legitimate need to maintain an effective national immigration policy. With respect to the latter consideration, we have taken into account her failure to observe the immigration regulations. In light of the circumstances of the particular case we consider that our actions are proportionate to the social need being fulfilled. We do not therefore accept that the decision to proceed with her removal from the United Kingdom would breach Article 8"
"But the expectation is that she would return to the Yemen and to apply for entry clearance in the category which she seeks to remain and the husband and children would be free to accompany her."
"Even accepting that your client has established a family life in the United Kingdom in light of her blatant disregard for the immigration regulations, it is considered that we are entitled to weigh such factors heavily against her when assessing whether interference with her family life is proportionate. Given the circumstances of your client's particular case we are of the opinion that requiring her to return to the Yemen thereby interfering with her family life is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control."
Respect for family life
"21. It is not difficult to understand why the Strasbourg Court has become more sensitive to the welfare of the children who are innocent victims of their parents' choices. For example, in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, the Court observed that 'the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken . . . of 'any relevant rules of international law applicable in the relations between the parties' and in particular the rules concerning the international protection of human rights'. The Court went on to note, at para 135, that 'there is currently a broad consensus including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount'.
'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.'
This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions 'are discharged having regard to the need to safeguard and promote the welfare ofchildren who are in the United Kingdom'.
'When a court determines any question with respect to –
(a) the upbringing of a child; or
(b) the administration of a child's property or the
application of any income arising from it, the child's welfare shall be the court's paramount consideration.'
However, questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1:
'The term 'best interests' broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that:
• the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9);
• the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies (Article 3).'
This seems to me accurately to distinguish between decisions which directly affect the child's upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death.
'A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.'
As the Federal Court of Australia further explained in Wan v Minister for Immigration and Multi-cultural Affairs  FCA 568, para 32,
'[The Tribunal] was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.'
This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.
'Exceptionally, a return to the home country may be arranged, after careful balancing of the child's best interests and other considerations, if the latter are rights-based and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights based arguments such as those relating to general migration control, cannot override best interests considerations.'
'(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship,
'and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle' (Vaitaiki v Minister for Immigration and Ethnic Affairs  FCA 5, (1998) 150 ALR 608, 614);
(b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland;
(c) the loss of educational opportunities available to the children in Australia; and
(d) their resultant isolation from the normal contacts of children with their mother and their mother's family.'
Lord Hope concurring said
"44. There is an obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration. The proper approach, as was explained in Wan v Minister for Immigration and Multicultural Affairs  FCA 568, para 32, is, having taken this as the starting point, to assess whether their best interests are outweighed by the strength of any other considerations. The fact that the mother's immigration status was precarious when they were conceived may lead to a suspicion that the parents saw this as a way of strengthening her case for being allowed to remain here. But considerations of that kind cannot be held against the children in this assessment. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible."
Lord Kerr added:
"46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.
"Each of the legitimate aims listed there may involve individual as well as community interests. If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country. It may amount to no more than that."
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
1) a continuing failure to recognise that the elder children also enjoyed family life on the facts are known to the Secretary of State following the RG (Nepal) approach;
2) a failure to recognise that the citizenship of the younger children was a very important matter in the consideration of the balance
3) continued reliance upon the decision of Immigration Judge Telford about it being open to the family to relocate without asking the question whether it was reasonable to expect them to do so; and
4) failing to recognise the weight to be given to the interests of the children's continued education and development in this country.
At this stage the children concerned had been here for a month or so short of six years and, although none of them could say to have spent most of their life here, the younger children would have now spent the formative years of their life here. I summarise Morthatha from 6 to 12, Nathear from 8 to 14, Mohamed from 10 to 16, Morsal from 12 to 18. It would also have been a material consideration for the same department to have realised why they granted discretionary registration because the lives of these children was based in the United Kingdom when considering whether it was conceivable that they could consider it reasonable to expect those same children to relocate to the Yemen.
"Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."
Those rights including the right to continue to reside in their own country.