UK Upper Tribunal: “powerful reasons” needed to remove a child after seven years in view of child’s best interests

Thursday, February 1, 2018

The UK Upper Tribunal has recently published its decision in case MT and ET v. the Secretary of State for the Home Department, which concerned a Nigerian woman and her child who arrived in the UK when the child was four years old. The mother made several applications for leave to remain on grounds of Article 8 ECHR and unsuccessfully applied for asylum. The First-tier Tribunal had decided that it was reasonable for the child to go with her mother to Nigeria, despite the fact that the child had lived in the UK for nearly ten years.

On appeal, the Upper Tribunal dissented from the First-tier Tribunal’s decision and found that the child’s best interests were clearly to stay in the UK with her mother, since the child has lived in the UK for ten years, is well advanced in her education, and has established social contacts in school and at church. The UK Upper Tribunal clarified that a much younger child, who has not started school or who has only recently done so will have difficulty in establishing that his/her right to private and family life has material elements beyond the need to live with the parents, wherever that may be. This is different, however, in the case of an older child, whose social life requires a wider focus in the assessment of the child’s best interests. Therefore, both the age of the child and the amount of time spent by the child in the UK should be relevant in determining where the best interests of the child lie.

Moreover, as set out in Court of Appeal’s decision in MA and others, only when there are “powerful reasons” should a child who has been in the UK for ten years should be removed, notwithstanding that her best interests lie in remaining. In this case, the Upper Tribunal found that, while the public interest lied in removing a person who has abused immigration laws, such as the child’s mother, nothing in her immigration history was so serious as to constitute a “powerful reason” that would render reasonable her child’s removal to Nigeria. Therefore, the Upper Tribunal quashed the First-tier Tribunal's decision and allowed the appeal on the grounds of Article 8 ECHR.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Best interest of the child