QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
on the application of Mrs. B N
|- and -
|The Secretary of State for the Home Department
Monica Carss-Frisk Q.C. and Carine Patry Hoskins (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 30th June - 1st July 2011
Crown Copyright ©
The Hon. Mr. Justice Stadlen :
"I am in full agreement with the opinion of my noble and learned friend Lord Brown of Eaton-Under-Heywood and for the reasons he gives I too would allow this appeal and reinstate the adjudicator's decision in the appellant's favour. To insist that an appeal to the Asylum Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children with whom that family life is enjoyed."
"When a Human Rights or Asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material which has previously been considered. The submissions will only be significantly different if the content:
i. had not already been considered; and
ii. taken together with the previously considered material, created a realistic prospect of success notwithstanding its rejection."
In the well known case of WM  Imm AR 337 Buxton LJ held that the judgment as to whether new material, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material. He held that the rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. "First the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third and importantly since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution"(paragraph 7).
The same principles apply in the context of a human rights claim as in the context of an asylum claim, (see R (on the application of Ratnam) (Savasoba) v Secretary of State  EWHC 398 Admin per Jackson J).When reviewing the decision of the Secretary of State Buxton LJ held that the court will ask two questions. First has the Secretary of State asked herself the correct question? Second in addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny?
1.8 "…Mrs. K told me that in her own Witness Statement it had appeared that she may have been critical of her sister's care of Konwani and suggested that she had never neglected him. Mrs. K's intention was to suggest that Mr. K had neglected both her sister and nephew and that B N was in no way complicit in any neglect of her son, rather it was circumstantial…
2.0 …In 2001 Mrs. K went to Malawi to visit her family and was shocked to see her niece staying on this occasion with their maternal aunt as the conditions were poor. This is not a criticism of Mrs N rather the conditions in the villages differ greatly to those in larger urban areas where the family home was situated. T had developed some form of skin condition and she had blistering as a result of this. Mrs. K decided that regardless of the practicalities, that her niece could not remain in the village and she returned her to her own home obtaining medical assistance for her.
2.1 Mrs. K again told me that the Tribunal felt this to be a criticism of her sister but rather, she explained, the meaning of her words had been mis-interpreted. Mrs. K explained that she will provide the financial means to care for the children but it was her sister B who gave them the practical input. What did give cause for concern was that the children's father Thommes K continued to come to Mrs. K's home in Malawi often acting abusively and making threats, these incidents being reported to the police authorities but it appears without much response, or protection on their part, for Mrs N and her children.
2.2 Following discussions with her sister, Mrs. K decided that it would be best if she took the children to the United Kingdom in order that she cares for them along with her own children, who, at this point, would have been in their mid to late teens. This would offer the children the protection they required but also structure and stability. On a practical level Mrs. K could only take one child at a time and so on 17 June 2001 brought Konwandi to the United Kingdom. I understand that this was with Mrs. N's full consent and the formalising of the arrangement by Mrs. K becoming first Konwani, and then subsequently, T's legal guardian. This was formalised under Malawi law but I assume that this enabled Mrs. K to have full parental responsibility for the two children when they arrived in the United Kingdom, something which would be necessary for practical reasons at the very least, for example should the children require urgent medical attention then Mrs. K will have the necessary authority to authorise this.
2.3 K was by now almost 5 years of age, his sister just three. Mrs. K told me that she was in constant contact with her sister and that the two sisters spoke frequently. However, T missed her brother and in 2002 she too joined her aunt in the United Kingdom. K was by this time settled in school and T began to attend pre-school where she too settled well and enjoyed her new environment. The children indicated that although they did not want to return to Malawi they missed their mother…
2.4 …M N who had also come to the United Kingdom and was qualified as an accountant and working in Leicester felt it appropriate that B N should join himself and their sister Mrs. K in the United Kingdom and be reunited with her children. Mrs. K told me that her sister was concerned about such a major move but she agreed to come, originally on a visitor's visa, however Ms. N decided to come instead and study in the United Kingdom choosing dental nursing with her sister Mrs. K, acting as her sponsor, and Mr. N paying her clearing fees. However the chosen college was not on the approved list and so she chose instead to study accounting and commerce with a view to gaining a degree.
2.5 Again Mrs. K paid her sister's fees but some way into the programme Ms N became depressed and stopped attending college. At this point Ms K, who struck me as an extremely patient and good willed woman, became exasperated at her sister's inability to complete her studies and was unsure why this occurred. Mrs N for her part left her sister's home giving no viable explanation as to why she had not attended college nor for her depression. I would suggest that this period coincided with her HIV diagnosis sometime the previous year in 2004. This was in 2005, she had by this time been a granted a visa to remain in the United Kingdom until October 2006. Ms. N did not tell her family of her diagnosis choosing to keep this information from them (however both of Ms. N's children are aware of the disease and have been for some time having found a letter in their home addressed to their mother which gave details of her illness). This diagnosis which her Consultant, Dr. Ahmed in his letter dated 28 September 2010, continued to lead to depression when he noted:
"It is obvious that B is experiencing high levels of anxiety and depression in relation to her condition and has not quite come to terms with coping with the diagnosis."
2.6 However the visa was dependent upon her maintaining her studies but that by this time her attendance was precarious. Instead Mrs. N chose to work rather than study and began to enjoy the benefits of earning money which she used to support her children who remained for a short time with her sister until she obtained her own property through the Methodist Church which she and her sister attended. Mrs. K told me that despite the Home Office suggestions otherwise, Mrs. N's children remained living with their mother in an independent property until the time she was removed and detained by UKBA officials. K told me that he was in the property when his mother was taken, something which he found both deeply disturbing and distressing. Until this point the children had stayed with their mother during the week and stayed with their aunt, who remained their legal guardian, during weekends.
2.7 It is my intention throughout the remainder of this report to explore the issues and difficulties facing the family unit and, the very serious impact Mrs. N's removal would have upon her, but also her children who whilst they are now in adolescence, remain highly dependent upon their mother to nurture and protect them.
F K, K and T K
2.8 Shortly after terminating her studies in the United Kingdom, Ms. N obtained work in the Nottingham area. Ms. N also obtained a property independently of her sister but in close proximity to her. I understand that during the time that Ms. N has been living in the United Kingdom she has had three separate properties but all of these have been in close proximity to Mrs. K, including for a period of time, living next door to each other. In Judge Freeman's Determination of 26 August 2010 it was stated that Ms. N resided with her sister and children for only a year before moving out and leaving their children with her sister and that she had shown "little interest in their health or education. Her sister has made all the major decisions in their lives. In those circumstances I am satisfied that if she were removed to Malawi there will be much less disruption to the family and life between her and her children than if they were living together in a functioning family unit"
2.9 This description of family life is something, which all members who I interviewed strongly denied, and told me that it was a complete misrepresentation of their family lives that were harmonious and closely unified. In 2006 Mrs. N moved next door to her sister and remained living there for a two year period until 2008. This property belonged to the Methodist Church and was managed by a church minister who arranged, in the first instance, for Ms. N to move into the property. The minister recognised that Mrs. N needed her own independence but that this needed to remain close to Mrs. K in order that they could both continue to provide joint care for their children.
3.0 As stated in paragraph 2.5, Ms. N had been living next door to her sister, the arrangement being that the children stayed with Ms. N during the week and with their aunt at weekends. When the UKBA officials removed Ms. N on 22 July of this year, Ms K told me that her children were distraught. Life in the United Kingdom at this point had been relatively normal, the two families would check on each other every day, Ms. N's children would visit their local library at least three times a week and then be driven or taken home by Mrs. K and they would spend the remainder of the evening with their mother.
3.1 Mrs. K told me that when Ms. N's appeal was heard on 26 August the immigration judge suggested that the children leave the hearing as it will cause them unnecessary distress, and so the children were told to leave the room. At this point Mrs. K told me of her anger at the dismissive approach of the immigration judge. Ms K confided in me that she and the children were fully aware of Ms. N's medical condition, that she is HIV positive and in the advanced stage of the disease. In fact the children told me that they had known about their mother's condition for at least two years following their finding of a letter. The children had not told their mother about the find, but both had felt immense sadness, and a certain depression, when they became aware of the situation. Mrs. K told me that neither she nor Ms. N's children would want her to die alone in a medical ward without the support of close family members. If anything the children felt extremely protective of their mother and display an immense maturity and understanding of the situation. I did not question Mrs. N on this point because of the nature of the interview, and I was unsure as to whether it was a confidential meeting, and one which met Data Protection Act protocol.
3.2 K told me that at the point he discovered his mother was HIV positive he became extremely fearful and distressed. Neither of the children disclosed this information to their aunt F, she in turn was upset that "they had carried this alone". As a result, K told me quite candidly, that he had had some issues related to drug and alcohol dependency once he became aware of the diagnosis. K told me that school counselling facilities had been highly supportive and had enabled him to move away form this destructive episode to the point that he is now studying for A levels and hopes to gain a place at University once he is eighteen.
3.3 At the point that the school became aware that there was any problem connected to K they contacted his aunt and together with the Connexions Service they worked on strategies to counteract this behaviour. Although Ms. N attended meetings at the school I am unsure whether or not she was aware that both her children and sister had come to know of her diagnosis, but I suspect not. In fact during our meetings I avoided discussing this area with either the children or Mrs. K because of my understanding that no other family member knew of the situation and it was Ms. K who bought the matter up when discussing K's progress in school.
3.4 Mrs. N worked with the school and her son on strategies to address these issues of dependency and attended several meetings with the Connexions Service who at this time offered counselling facilities linked into educational networks. Ms K told me that K was able to refocus his attention from this episode to the point that he achieved well at GCSE O Level obtaining good results in all subjects which has enabled him to continue through to A Levels. Ms K told me that as well as the school being supportive it was Ms. N who sat with her son and coached him with his homework, particularly in the area of maths, at which she is highly competent.
3.5 Ms K told me that the family as a whole are very study focused which was why she was upset and dismayed when her sister B failed to complete her studies. With hindsight it is perhaps easier to see why in fact events occurred in the way they did and that Ms N withdrew. Ms K for her part bought additional learning support materials which she encouraged the children to use, again with their mother's support. Ms K for her part is currently studying for a PhD in social Justice and so there is an atmosphere conducive to education and learning within both her home and that of her sister.
3.6 When I asked Ms. K what impact her sister's arrival had upon the family, in particular her children K and T, she told me that it had given her a "lift" and had taken much pressure away from her. Although working illegally Ms N had contributed fully to the family's finances as well as maintaining the fees on the property which she rented from the church. Ms K noted that since her sister has been detained it has been much more difficult for her to maintain the status quo and that an added factor has been the children's distress at their mothers absence from the home. Mr K told me that there had been a noticeable impact on T who had become increasingly withdrawn and distracted, spending increasing amounts of time shut in her room. K told me that he constantly felt distracted, and indeed angry, that his mother had been removed in the manner she had, but also, that she was not in the family home where he could readily access her throughout the day
3.7 Ms. K described how since her sister was detained her input with the children has also altered in that when Ms N was at home and interacting with the children on a daily basis she felt confident in her advice and responses to her niece and nephew, now with their preoccupation with their mother's dilemma, she is less sure how to "angle advice" as both children are highly sensitive at this time and quickly become distressed. Ms N told me that she felt more open in what she said to the children when their mother was with them but now she feels more caution and reticence when speaking to the children, as she is acutely aware of and sensitive to their current insecurity.
3.8 Both children described to me the closeness they felt towards their mother. After 2008 when the property rented from the church was no longer available and had to be sold, two further properties were identified each within minutes of Ms. K's own home, therefore the two households effectively blended into a larger extended family unit in which there was daily contact for all parties. T described her relationship to her mother as being very close, she of the two had felt the greater stress of not being able to access her mother, and discuss candidly with her, issues which affect adolescent children, and which she does not always feel comfortable discussing with her aunt regardless of Ms. K's altruistic and empathetic nature.
3.9 T told me that she feels more withdrawn and does not mix so readily with her peer group, in doing so, they cannot then ask questions regarding her mother of whom she feels very protective. T told me that she increasingly finds it very difficult to be open with anyone including peers but generally anyone with whom she comes into contact. Although a highly articulate and clearly intelligent young person, T found most of my questions difficult, and at times obviously painful, and at several moments during the course of the meetings she became quite tearful. T felt that she now has to deal "with things alone" and although she does have her aunt for support they both stated that this does not replicate the bond between mother and daughter, which they both stated was, and remains, very strong. T told me "I look up to mum so much, we are really very close, we can talk about anything, she can advise me, tell me what to do." T went on to tell me that she felt that her every day life was changing and that she needed her mother with her for support, to interpret for her what these changes meant. T was again referring to the transition from childhood to adolescence…
4.0 ...I found both T and her brother to be extremely mature and measured young people with clear insight into their mother's situation, and enormous dismay at how their mutually interdependent relationships have been portrayed by the Home Office and during the course of the tribunal hearing itself.
4.1 The school are aware of the children's current pressures, and have, it appears enabled T to have the personal space she requires at this time but with covert support always available should she need to approach a member of staff for additional advice. Ms K told me that prior to her mother's detention she was extremely social, K told me that he and his sister had performed together in front of the whole school at a talent competition performing a song which he himself had written and recorded.
4.2 For his part, K told me of his respect for his mother of whom he said, "It is hard for a woman to raise up a man, she filled in the gaps where my father was absent." K went on to discuss how growing up without a father was at times difficult, but that his mother took on the role of both parents, that he had an easy camaraderie with his mother with whom he could talk about anything. Even when he became distracted for a while with drugs and alcohol, his mother did not seek to judge him, merely to resolve his behaviour and this for his benefit. Ms K suggested that as she and her sister were both single parents they had both worked together to "fill in the gaps" and overall this had been successful beneficial to all parties.
4.3 K told me that he did not like to show his emotions but that he tries to distract himself, perhaps goes to friends homes to study but he did say that this no longer provides him with any comfort as "Now it's reality and I am really feeling the emotions." K was referring to his mother's proposed and imminent removal. Ms K endorsed the children's comments, explaining that the situation was beginning to impinge on the children's social relationships, that they were fearful of telling their friends and peers what was occurring, both of them increasingly staying in their rooms. Ms K told me that it was noticeable how much more withdrawn T had become in recent weeks, that she used to be open and candid with her but that this has recently altered and she is more hesitant and guarded. Ms K also said that T is very frightened that she will be left alone and that she will not have her mother for support and comfort.
4.4 K and T were very young when they initially came to the United Kingdom to reside with their Aunt. Both children told me of the difficulty of maintaining a relationship by telephone, that it does not replicate or offer the same comfort as the actual presence of someone involved in their daily lives. The initial separation was circumstantial and one many families find themselves at certain times in their lives. In this instance there was a strong family infrastructure with which to maintain and ultimately build upon relationships. However both K and T told me that communication by technological means is synthetic, that they cannot discuss openly what it is they want to express. Ms K recalled that when the children were young and recently arrived in the United Kingdom, they would telephone their mother arguing with her to come to this country, that they did not simply want to talk to her, but to actively see and be with her.
4.5 When I asked the children what if anything they would wish to express in terms of their relationship with their mother they told me the following:
T: "It's not fair, mum has done nothing wrong, we are punished as much as her, it's breaking my heart, what she is feeling, all I want is to have my mum back, that's what it is. I want my mum over here not over there, I need my mum."
K: "I can protect my sister but she cannot talk to me like she can my mum." K went on to say this, "I was in the house when they [UKBA officials] came, they asked me why I was there, they tried to state that she was not my mum, they told me my aunt was my mother, they tried to say this in court," (something reinforced by Ms K). K explained that at the time he referred to his aunt as Gogo which translated is a term for mother in Malawi, but one used towards close female relatives as a mark of respect, and in the same manner as one would refer to a close family friend as aunt or uncle in this country.
Both children stated their continuing dismay at the separation from their mother which was causing them both social and emotional hardship…
4.8 …Ms. N decided to come to the United Kingdom when she recognised that contact arrangements were not working and, that as her children described these arrangements earlier in this report as, "synthetic". Ms. N told me that she became quite depressed, that she was unable to sleep and could not continue with the emotional strain of being apart from her children. It was also proving costly to contact her children, even twice a week, and felt unable to say to her sister and children in such a limited time and from such distance, what she really wanted to express. However Ms N did tell me that she trusted her sister implicitly with her children but it was the emotional burden of separation that she found so difficult.
4.9 Once settled in the United Kingdom Ms. N described a life of routine and structure, the family lived close to Ms. K and they shared childcare responsibilities. Ms. N would take and collect the children from school they enjoyed singing and dancing together, social visits to the park, swimming and exercise classes or simply watching television, mostly mundane aspects of family life. Ms. N told me that she was active in her children's education attending parents evenings and open days and recalled working with the Connexions Service when issues arose around her son's then dependency, Ms. N did not appear to know what the trigger for this behaviour actually was which makes me believe that she remains unaware that her children and her sister know of her diagnosis.
5.0 Ms. N told me that she had lived with her children in the United Kingdom since her arrival, the only time they have been separated has been since her detention in July of this year and described the living arrangements with her sister as "a big family unit". Ms. N also described how their brother M and his family would visit several times a week, and that his daughter and T are extremely close spending much of their social and free time together but often at her home. Ms. N told me that during an average week she and her children see her brother, along with his family, four times if not more. At weekends the siblings meet together and share the family meal on a Sunday…
5.4 …Ms. N told me that when she first came to the United Kingdom and was reunited with her children, the reaction was strong because they were bonded so well but that a further separation is not something either she or her children would want, at the time the separation was due to circumstances and Ms. N went into some detail with regard to her former relationship with Mr. K. In reality Ms. N appears to have taken realistic and altruistic action in order to safeguard and protect her children and recognised that at the time she was not the person most able to address these needs for her children…
5.5 …In the short time I talked with Ms. N I gained the impression of a young woman who at the time had taken action which she felt to be in her children's, not her own, interests but that separation had been deeply painful and not something which either she nor her children would want to again encounter…
5.9 …In this instance there are also other factors to be considered which affect K and T and, those which will invariably arise from Ms. N's health status and the potential implications this may have in future upon the children who appear to have maintained the secret knowledge of their mother's condition for some time even to their detriment in the case of K, and I suspect, T who has internalised and dwelt on this knowledge. I have mentioned the dichotomy of expectation and provision of care for those who have status. However this care and, the security which it is intended to uphold, would be extinguished for the children should their mother be removed to Malawi. The move to Malawi would in essence have the effect of dismantling the immediate family unit. Although Immigration Judge Freeman(sic) in the Determination document suggested that the children may follow their mother shortly to Malawi, they have been brought up and socialised into United Kingdom culture in which they have thrived, established relationships and succeed academically, therefore the impact of relocating a child or children should not be under-estimated regardless of distance or locality.
6.0 K and T currently have in place those elements identified in the statutory Framework Assessment model as pre-requisites to satisfactory development. Given their experiences I suggest that the security and structure offered to both children initially on their arrival in the United Kingdom by the Aunt F K, and subsequently their mother in addition to their aunt, when she entered the United Kingdom in 2004 and has been highly significant in socialising them both into a structured and secure family environment…
6.1 …Ms. K's care of her niece and nephew appears to have been undertaken with enormous empathy and understanding of her sister, and so when Ms. N arrived in the United Kingdom, rather than have two children resentful at the intrusion they were able to readily re-establish family life with two significant female role models. Some children may resent the intrusion of a further adult figure in their lives placing new boundaries and expectations upon them. T and K appear to have positively welcomed and embraced a reunion with their mother.
6.2. Although the UKBA suggest otherwise and insist that measures are in place to ease individuals back into a society once they have been removed or relocated, the reality is very different. I believe that contact with their mother will be compromised for T and K neither of whom were able to enjoy a positive and productive early childhood with their mother and certainly not their father, and it was only in middle childhood and now adolescence that they were able to gain those skills and knowledge drawn from their relationship with their mother which will set him towards adulthood and this is something which for K is extremely important as he himself said his mother had taken on the difficult duality of role of both mother and father…
6.3 …In my opinion T and K have been offered a substantial security in the time that they have been with their aunt and mother in the United Kingdom. Should their mother be removed to Malawi, progress that has been made may be negated and in my opinion the children may lapse into a state of despair and inability to cope socially, psychologically and emotionally. It is an enormous and unfair expectation that a child having developed a strong and binding relationship with a parent to have it terminated without any rationality for ending something which is so productive and which childcare legislation and best practice guidelines contained within Every Child Matters protocol in the United Kingdom actively seeks to protect and ensure the development of young people of a similar age and situation to both K and T…
Conclusions and Recommendation
6.4 …K and T K are two young people who should be able to enjoy their childhood and adolescence and to be able to do this within a secure family environment. Whether what has been established and successful so, in terms of this security can continue for K and T is questionable and, dependent on what is determined with regard to their mother, these factors cannot be separated.
6.5 Article 12 offers K and T the opportunity to express their views…
6.8 …K and T have clearly and strongly stated their views, and I would bring attention to the United Nations Convention on the Rights of the Child, which is increasingly referred to by social work practitioners involved in childcare practice to ensure that the best interests of the child are met in any circumstance…"
"[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".
"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?" (Paragraph 1).
While the issue identified in the second sentence, which arose in that case, was of a narrow compass, the issue identified in the first sentence was in my view plainly intended to be of general application.
"Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child's own views. Article 12 of UNCRC provides:
1. "States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. (Paragraph 34)."
"… it cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failure of either of his parents. Sometimes further information may be required. If the Child and Family Court Advisory Support Service or, more probably, the local children's services authority can be persuaded to help in difficult cases, then so much the better. … (Paragraph 35)
"The important thing is that those conducting and deciding these cases should be alive to the point and prepared to ask the right questions. …
In this case the mother's representatives did obtain a letter from the children's school and a report from a youth worker in the Refugee Migrant Forum of East London ("Ramfel"), which runs a Children's Participation Forum and other activities in which the children had taken part. But the immigration authorities must be prepared at least to consider hearing indirectly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents' this should not be taken for granted in every case. As the Committee on the Rights of the Child said, in General Comment No 12  on the Right of the Child to be Heard, Para 36:
"In many cases… there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child's views are transmitted correctly to the decision-maker by the representative."
Children can sometimes surprise one." (Paragraphs 36, 37).
"together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims." (paragraph 14).
"2.7 The UKBA must also act according to the following principles: …
in accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children…..
"2.11 responsibility for the UKBA's contribution to safeguarding and promoting the welfare of children lies with each member of staff according to their role"
"the effect of a decision such as that in ZH (Tanzania) is often characterised as changing the law, and, in popular discourse that may be so. But, strictly speaking, as a result of the common law principle that judicial decision-making is declaratory, it is in fact not the law that has changed but our understanding of what the law is." (Paragraph 100).
Beatson J went on to hold that it was not necessary in that case to decide whether there is a tension between the common law's declaratory principle of judicial decision-making and the treatment of the European Convention on Human Rights as "a living instrument" or if there is how it is to be resolved. He held that "in the present circumstances, the Defendant's approach to the effect of the grant of the British Citizenship to FM may have been in accordance with the general understanding of what the law was at the time but that does not mean that it was lawful". (ibid.)
The second ground of challenge
"There shall be a senior member of staff ("Children's Champion") who is responsible to the Chief Executive of the UK Border Agency for promoting the duty to safeguard and promote the welfare of children, for offering advice and support to UK Border Agency staff in issues related to children, and identifying and escalating areas of concern."
"…we are not in a position to review our support for the judge's decision unless we have full access to the correspondence between UKBA and [the Claimant's solicitors] and the independent social work report. We don't know if the independent social work report contains new material which has not been considered by the judge….we are happy to conduct a review when full documentation is available to us."