Children of failed asylum seeker can stay in UK, Supreme Court says

The children of a Tanzanian asylum seeker, who twice pretended to come from Somalia to stay in the UK, can remain in the country, the Supreme Court has ruled.

Giving the leading judgment in ZH (Tanzania) v Home Secretary [2011] UKSC 4, Lady Hale said the best interests of the women's children, now aged 12 and nine, must be a 'primary consideration', even though they were conceived when her immigration status was 'precarious'.

When making a proportionality assessment under article 8, Lady Hale said the courts must consider the rights of the children first.

In this case, she said the children were British, not just through the 'accident' of being born here, but because they had a British father and had lived here all their lives.

'It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily reintegrate in their own community.

'But it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well.'

Lady Hale said that the 'inevitable result' of removing the children's primary carer would be that they would have to leave with her.

She said the 'intrinsic importance' of British citizenship should not be played down.

'As citizens these children have rights which they will not be able to exercise if they move to another country.

'They will lose the advantages of growing up and being educated in their own country, their own culture and their own language.'

Lady Hale said those deciding immigration cases should be 'alive' to the importance of the children's views and prepared to ask the 'right questions'.

She said one way of enabling the right questions to be asked was through a pilot scheme in the Midlands called the Early Legal Advice Project.

Under the scheme, asylum seekers with children are offered an appointment with a legal representative who has time to collect evidence.

In this case, Lady Hale said a letter was obtained from the children's school and a report from a youth worker.

'But the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents', this should not be taken for granted in every case.'

Lords Brown and Mance agreed with Lady Hale that the mother's appeal should be allowed, as did Lords Hope and Kerr, giving their own reasons.

Lord Hope said there was an 'obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration'.

He went on: 'The fact that the mother's immigration status was precarious when they were conceived may lead to a suspicion that the parents saw this as a way of strengthening her case for being allowed to remain here.

'But considerations of that kind cannot be held against the children in this assessment. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.'