UK - ZH (Tanzania) (FC) v Secretary of State for the Home Department, 1 February 2011

(1) The starting point and primary (though not only) consideration for this kind of decision is what is in the best interests of the child. This involves asking whether it was reasonable to expect the child to live in another country. Relevant factors included the level of the child's integration and the length of absence from the other country; where and with whom the child was to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which would be severed if the child had to move away.

Although British citizenship was not a "trump card", it was of particular and intrinsic importance in assessing the best interests of any child. C were British not just through the "accident" of being born in Britain but by descent from a British parent. They had an unqualified right of abode, had lived in Britain all their lives and were being educated in Britain; they had other social links with the community and had a good relationship with F. It was not enough to say that a young child might readily adapt to life in another country, particularly children who had lived in Britain all their lives and were being expected to move to a country they did not know and where they would be separated from a parent. The children had rights which they would not be able to exercise if they moved to another country. They would lose the advantages of growing up and being educated in their own country, their own culture and language.

When making an assessment of proportionality under art.8, the best interests of the child had to be a primary consideration: a starting point for any assessment. However, they could be outweighed by the cumulative effect of other less important considerations. In the instant case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with M's “appalling” immigration history and the precariousness of her position when family life was created. However, C could not be blamed for that and the inevitable result of removing M, their carer, would be that they would have to leave with her. In those circumstances, it would be disproportionate to remove M.

(2) An important element of considering the best interests of the child was discovering the child's own views. The immigration authorities had to be prepared to consider hearing directly from a child who wished to express a view and was old enough to do so. While their interests might be the same as their parents', that should not be taken for granted.