UK - Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent)

Country of Decision:
Country of Applicant:
Date of Decision:
27-11-2013
Citation:
Zoumbas v. Secretary of State for the Home Department, [2013] UKSC 74
Court Name:
Supreme Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
UK - Borders
Citizenship and Immigration Act 2009
Immigration Rules
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Headnote: 

In deciding extradition cases, the best interests of the child, although a primary consideration, could be outweighed by other interests, in this case effective immigration control. The impact of the family's extradition on the interests of the children was judged proportional, if weighed against the Zoumbas' appalling immigration record and the fact that the family could be removed without serious detriment to the children's well-being. Important guidelines were given for the decision of cases involving the welfare of children.

Facts: 

Mr and Mrs Zoumbas' immigration history is described as 'poor' at best, involving multiple entries from 2001-2 onwards on forged and stolen passports; frequent failed asylum applications, removal to the Republic of Congo in 2005 and illegal re-entry. They married in 2003 and had three children. In June 2010 Mr Zoumbas claimed that his family should be allowed to remain in the United Kingdom since his circumstances had changed and he now had established family life there, which should be protected under article 8 ECHR. The Secretary of State rejected his claim, and Mr Zoumbas applied for judicial review. 

Decision & Reasoning: 

The Court gave a seven-point summary of the law on extradition and 'best interests of the child' in para 10, drawing particularly on ZH and H(H). For example, the best interests of the child are an integral part of the proportionality assessment under article 8 ECHR; are a primary consideration, but not the paramount consideration, and can be outweighed by other considerations; and no other consideration can be treated as inherently more significant. Furthermore, 'it is important to have a clear idea of…what is in the child's best interests' and lastly that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.

Counsel for the appellant had claimed that the decision to expel the family was unclearly stated and flawed, citing in particular the judgment in ZH that 'what is determined to be in a child’s best interests should customarily dictate the outcome of cases and that it will require considerations of substantial moment to permit a different result' (par 12). Against this, the Court pointed out that the subsequent decision in H(H) clarified that there could be such considerations, 'even where [they had] severe consequences for children.' In this case, although the proposed removal of the family would interfere with family life (thus engaging article 8 ECHR), the interference had to be weighed against the need to maintain effective immigration control. Parents and children were to be removed together (para 24), and the interference with family life was proportionate to the aim as the Secretary of State had set out in her letter (para 16). 'The decision- maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being' (para 24). They would not be separated from their parents (compare H(H) cited at para 13); while there were no other family members involved, cf Beoku-Betts cited at para 16. The decision to give a lesser weight to the childrens' welfare (given that they were not British citizens, para 24) was appropriate. And it was not necessary 'to consider the children's best interests first and then to address other considerations which might outweigh those interests' (para 19), as counsel for the appellant had conceded. The appellant's challenges to the decision-maker's reasoning were therefore mistaken. However, Lord Hodge in concluding suggests that 'challenges, such as this one, would be less likely if [the Secretary's] advisers were to express the test in the way in which it was expressed in ZH (Tanzania) and to expand the explanation of the separate consideration that was given to the interests of the children'. 

Outcome: 

Appeal denied. 

Observations/Comments: 

This case can be seen as one of several (in particular the very different H(H)) which explain or extend the guidance on Article 8 immigration cases resulting from Z(H); there is an outline of a process whereby the decision maker should weigh the 'best interests of the child' against other considerations and justify her decision.

For further commentary on the case please see, Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 - a case  summary. As noted there, effectively 'the  Court has probably made it more difficult to appeal on the basis of insufficient weight being given to the interests of children in article 8 cases.' 

This case summary was written by Luke Hodgkin, LLM Birkbeck University. 

Case Law Cited: 

UK - Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39

ECtHR - Neulinger and Shuruk v. Switzerland [GC], Application No. 41615/07

UK - H (H) – v – Deputy Prosecutor of the Italian Republic [2013] 1 AC 338

UK - EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159

United Kingdom - Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27

UK - H v Lord Advocate 2012 SC (UKSC) 308