‘Where the best interests of the child favor a certain course, that course should be followed unless countervailing reasons for considerable force displace them.’
Per Lord Kerr in ZH (Tanzania) v SSHD [2011] UKSC 4, at para 46
Critically discuss the extent to which this statement is an accurate reflection of the law relating to migration in the UK.
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The execution of this paperwill outline why current immigration law in the UK does not accurately reflect the statement provided. The paper will argue on the implication of the competing interests between the best interest principle, immigration control, and public policy.[1]The paper will also seek to determine that the UK’s immigration policy does not uphold its obligations to ensure that the child’s best interest is met and that immigration policy should be modified to guarantee its prominence in law.
Article 3 of the United Nations Conventions on the Right of the Child 1989 (UNCRC) sets the provisions that the best interest of the child must be a top priority in all the decision makingthat affects children. Following the decision in ZH (Tanzania)[2] the scope of the best interests’ provisions was extended to have a prevailing effect in court decisions.
Unaccompanied child asylum-seekers (UCAS) are the most vulnerable in society, often escaping from war-torn countries and persecution. Section 55 of the Borders, Citizenship and Immigration Act 2009 mandates the ‘Home Office to perform its functions in safeguarding and promoting the children’s welfare the UK.’[3]Since the implementation of the Immigration Act 2016, the UK has adopted a hostile immigration policy.
Indeed, the UK shows little or no interest in ensuring that UCAS’s best interest is safeguarded. For instance, the UK withdrew its general reservation of matters immigration on the 18th of November the year 2008. This withdrawal was made almost twentyyears after the approval of UNCRC. The reservation by the UK, had permitted it to derogate from the rights and obligations of the UNCRC in matters regarding the legislation of immigration and nationality.[4] The reason why is prudent to sustain our argument that the UK did not give priority to safeguarding the rights of the UCAS, is that the withdrawal of the reservation of the UK on immigration matters did not happen because the administration had recognized the need and importance of honoring the rights and obligations of the UNCRC but rather, the withdrawal was due to pressure from various child charities and human rights organizations.’[5]
To further underscore the argument that the UK had been cautious regarding the protection of the UCAS, it is essential to point out that before coming into force of section 55 BCIA 2009 and the withdrawal of the reservation to the UNCRC on matters immigration by the UK, little or no reference was made to the UNCRC in any domestic case law. What used to happen was that kids were usually treated as an accessory to their parents instead of being treated as owners and bearers of rights themselves who deserved attention individually. For quite some time, the secretary of state gave little weight to family relations that had been formed throughoutthe applicant’s immigration status that could be termed as precarious. For example, from the facts of Mlahmood v SSHD, it can be deduced that if a parent faced imminent deportation of removal, the courts always held that no paramountcy or primacy should be given to the interests of the child. The direction of the courts was that balance should be struck between the welfare of all the involvedparties and the interests on the immigration policy. Even in this case, absolutely no preference had been accorded to the child’s interests deduced from Gangadeen v Khan. For instance, children who had been residents of the UK from birth, including those that had a British parent, were expected by the courts to accompany their non-British parents abroad or decide to remain in the UK, which meant that they are separated from their parents. In this scenario, therefore, the definition of the children was in terms of their status as migrants, and no preference or attention whatsoever was given to their rights as children.’[6]
The UK has not always recognized the UCAS’s rights in its own volition, but it has done so under pressure mainly from humanitarian organizations. For instance, it was not until October 2016 that the first children lot of children seeking asylum were granted entry into the UK. This was following the amending of the UK’s Immigration Act 2016 that had been christened the Dubs amendment. It should be noted that this arrival due to a drive-by Lord Dubs together with other refugee advocacy organizations that had given the government pressure into giving children who were unaccompanied and stranded in camps in Europe, secure and legal entry into the United Kingdom. In the summer of 2015, a photo of that body of washed-up three-year-old Alan Kurdi graced the media of the UK, giving way to other media images of kids who were stranded in a number of European boarder points and these images had served as a way of morally pressurizing politicians to lend safety to child refugees.’[7] Therefore, it implies that without the political and humanitarian pressure, the politicians in the UK were unwilling to protect the rights of the UCAS.
In the UK courts on matters immigration, a question has always been asked regarding the extent to which the behaviors of a child’s parents should determine as to whether or not a child should be deported from the UK or what future does a child whose parents have been deported faces without the parents. These questions where heavily considered by the judges in KO (Nigeria) and others v Secretary of State for the Home Department. Giving reference to the Merchant of Venice by Shakespeare, many solicitors in the UK strongly fee when it comes to the immigration policy of the UK that when it comes to theimmigration policy of the UK, the adage may be a true expression of what is happening. This kind of observations stems from the fact that sometimes in the UK, when the courts are considering as to whether or not a child should be allowed to stay with a parent in the UK, situations have arisen where the Immigration laws of the UK dictate that tribunals and courts should consider the conduct the of the parents.’[8] Immigration solicitors in the UK believe that immigration officials, tribunals, and courts should always act in the best interest of children’s welfare when they are making decisions on a matter relating to children. However, often there is tension between the child’s interest, parental behavior, and the immigration policy. Acting in the child’s best interest has given rise to tension between control of immigration, public policy, and the principle that when considering matters migration, the child’s welfare should always be primacy and paramount[9]
Arguments can be sustained that there are instances that the misconduct of the parent can sometimes outweigh the best interest of a child. On the 10th of January of 2017, the Upper tribunal gave further guidance on how to assess the best interest of the child in the context of article 8. The tribunal heavily considered the extent to which a parent’s poor immigration history can bear on the welfare of a child. In an application by a mother who had overstayed in the UK, and whose children had been born in the UK aged five and seven, the secretary of state denied the family further leave. This decision was upheld by the first-tier tribunal (FTT).
The UK’s immigration policy does not uphold their obligations to make sure that the best interest of the children isalways catered for. This is underscored by the fact that there have been claims of rape of women and children asylum seekers in the UK. It should be noted that even though no robust data is available on rape claims of women and children seeking asylum, estimates that suggest sexual violence are common. The fact that there is no robust data on the sexual violence of women and children of asylum seekers shows that the UK administrations are not fully committed to protecting the rights of the UCAS and even those of women.’ [10]
A child refugee is defined as a person under the age of 18 years who fulfills the Article 1A (2) of the Convention relating to the Status of Refugees 1951 in which they are awarded all the rights of the Convention. Due to the hostile immigration policy in the UK there is limited protection of these rights. Due to the hostile environment, it is harder for migrants, including unaccompanied children, to arrive safely to the UK, leaving them vulnerable to traffickers and smugglers[11]The proportion of children claiming asylum who were recognized as refugees in the UK at the initial decision stage rose from 7% to 18% across these five years. The majority demographic of UCAS consist of Afghan boys yet the refugee recognition rate for Afghan children was only 8% compared to the average for child claims of 19%”[12]Despite the public policy in the promotion of children’s best interest, government policy requires that separated children who are denied asylum should be taken back to their countries of origin if adequate arrangements can be made for their reception and care on return.’[13]
“Where, at the time of the initial decision, there are less than six months before the child reaches 17, they may be excluded from any form of status altogether’ Due to the delays children are often considered as no longer at risk”[14] this brings up issues of not protecting the child’s Right The 1959 UN Declaration on the Rights of the Child provides in Principle 8: “The child shall in all circumstances be among the first to receive protection and reliefuntil their 18th birthday. In theassessment of an internal flight alternative, lack of child-sensitive reasoning was identified… In a quarter of the decisions assessed, the country of origin information [relied on by the UKBA case-owner] was not child-specific and instances where [UKBA] source[d] objective information not relevant to the particular circumstances of the child’s case or put excessive weight on insufficient or incomplete.”[15]
Even after the instigation of the UASC leave by the UK administration, the leave was found to be with the following limitations. First, The Children’s Commissioner for England described UASC leave as ‘much more like a stay of execution than anything else[16] Under the leave, the children were still vulnerable even when they are 17 and a half, and the leave does not guarantee protection. Whereas the Home Office has argued that granting protection in the form of UASC leave is the most effective way of balancing the competing priorities of meeting the child’s best interests while maintaining effective immigration control, [17]The children were still left in a state of limbo and uncertainty, and local authorities and non-governmental organizations are concerned that UASC leave is damaging for children because of the uncertainty over their future, which causes unnecessary distress and is not in their best interests.’[18] It was also argued that as well as having an impact on their Right to education and access to the labor market, it also impacts their Right to life, survival, and development under Article 6 of the CRC, a fundamental and guiding principle of the CRC.’[19] Also, the effect of detention on children is well documented, and it has been demonstrated that even short periods of detention can have a negative and profound impact on children’s health and well-being.’[20]
Detention of unaccompanied minors
Under Article 37(b) of the CRC, the detention of children must not be unlawful or arbitrary and is circumscribed by the ultima ratio principle, meaning a child should only be detained as a last resort and for the shortest period possible. CMW and CRC Committees confirmed that detention for immigration purposes is never in a child’s best interests.’[21]Arguments by Dudley et al. postulate that arrest for purposes of immigration poses immediate and undeniable mental problems that are long term, which harm the health and life of children seeking asylum and their families.’[22]
No right to appeal decisions
In conclusion, without incorporation of the CRC into UK law, there are few avenues for children to challenge the government’s policy[23]It has been proved that no aspect of the hostile environment policy speaks of the best interests of the child.’[24]The UK’s immigration law has been criticized for being ‘obscureand ‘anything but accessible, intelligible, transparent, and predictable. Therefore, it is high time that the UK administration became deliberated in ensuring that the rights of UCAS are upheld at all times’[25]
Bibliography
Christie, Ayesha ‘The Best Interests of the Child in UK Immigration Law’ (2013) Nottingham LJ 22 16.
McLaughlin, Carly’They don’t look like children’: child asylum-seekers, the Dubs amendment and the politics of childhood’ (2018) Journal of Ethnic and Migration Studies 44 (11)1757-1773.
Baillot, Helen, Sharon Cowan, and Vanessa E. Munro ‘Reason to disbelieve: Evaluating the rape claims of women seeking asylum in the UK’ (2014) International Journal of Law in Context 10, no. 1, 105-139.
Pobjoy, Jason ‘The best interests of the child principle as an independent source of international protection’ (2015) International & Comparative Law Quarterly 64, no. 2 327-363.
Syd Bolton ‘Promoting the Best Interests of The Child in UK Asylum Law and Procedures’ [2012] JIANL 2012, 26(3), 232-254.
Ruth Brittle ‘A Hostile Environment for Children? The Rights and Best Interests of The Refugee Child in The United Kingdom’s Asylum Law’ (2019) 19 Human Rights Law Review.
[1].’UK Immigration Law: Court Case Development on The Deportation of Children’ (OTS Solicitors) <https://www.otssolicitors.co.uk/news/uk-immigration-law%3A-court-case-development-the-deportation-of-children>
[2]ZH (Tanzania) v SSHD [2011] UKSC 4, at para 46
[3]Syd Bolton, ‘Promoting the Best Interests of The Child in UK Asylum Law and Procedures’ [2012] JIANL 2012, 26(3), 232-254.
[4]Pobjoy, Jason’s best interests of the child principle as an independent source of international protection’ (2015) International & Comparative Law Quarterly 64, no. 2 327-363.
[5]Christie, A. ‘The Best Interests of the Child in UK Immigration Law’(2013) Nottingham LJ, 22, p.16.
[6]Christie, Ayesha ‘The Best Interests of the Child in UK Immigration Law’ (2013): Nottingham LJ 22 (16).
[7]McLaughlin, Carly‘They don’t look like children’: child asylum-seekers, the Dubs amendment and the politics of childhood’ (2018)Journal of Ethnic and Migration Studies 44, no. 11 1757-1773.
[8]https://www.otssolicitors.co.uk/news/uk-immigration-law%3A-court-case-development- the-deportation-of-children
[9]. https://www.otssolicitors.co.uk/news/uk-immigration-law%3A-court-case-development- the-deportation-of-children
[10]Baillot, Helen, Sharon Cowan, and Vanessa E. Munro ‘Reason to disbelieve: Evaluating the rape claims of women seeking asylum in the UK’ (2014) International Journal of Law in Context 10, no. 1, 105-139.
[11]Ruth Brittle ‘A Hostile Environment for Children? The Rights and Best Interests of The Refugee Child in The United Kingdom’s Asylum Law’ (2019) 19 Human Rights Law Review.
[12]Syd Bolton ‘Promoting the Best Interests of The Child in UK Asylum Law and Procedures’ [2012] JIANL 2012, 26(3), 232-254.
[13]Ibid
[14]Syd Bolton (n 11)
[15]Ibid
[16].’ Ruth Brittle (n 10)
[17]Ibid
[18]Ibid
[19]Ibid
[20]Ibid
[21]Ibid
[22]Ibid
[23]Ibid directly
[24]Ruth Brittle (n 11)
[25]Ibid