United Kingdom: Supreme Court provides guidance to deportation decision-makers on how to consider the bests interests of a child

Tuesday, December 3, 2013

Zoumbas v Secretary of State for the Home Department [2013] UKSC 74concerns a Congolese husband and wife and their three children (aged 9, 5 and 2) refused leave to remain in the UK. The parents entered the UK irregularly in the early 2000s, got married, and had their first child. After their asylum applications were refused, the wife and child were deported to Congo and the husband absconded. After a second irregular entry by the wife and child, and a second refusal of asylum, the family sought to oppose their deportation to the Congo on Article 8 grounds, by submitting that their family life constituted a change in circumstances sufficient to justify a fresh asylum claim. The Secretary of State for the Home Department rejected this submission, and the family launched a last resort judicial review on three grounds, which reached the Supreme Court, essentially challenging the Secretary of State's evaluation of the bests interests of the children in the Article 8 proportionality assessment.

The Supreme Court unanimously dismissed the family's appeal, on the ground that the family had misconstrued the leading authority on child best interests considerations - ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. In that case, unlike the present appeal, the children were British citizens, which was an important factor in determining which country of residence would serve the best interests of the children. The court also clarified that the child's best interests should only be given greater weight than other factors, and need not be determinative. The Secretary of State's decision was proportionate, taking into account the family's unlawful residence, their establishment of family life despite knowing the precarious and uncertain nature of their immigration status, the couple's 'appalling immigration history', their unidentified sources of financial support, and their unity as a family if all removed to Congo. The court encourages future appellants challenging refusal letters to analyse the substance of the decision, and not dwell on the structure or precise layout of the letter's content.

Read the judgment of the UK Supreme Court, and the official press release.

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Best interest of the child