RCRP were heavily involved in this landmark case in which Lady Hale set out the relevance and weight of the concept of ‘Best Interests of the Child’ in an immigration context. This truly landmark case involved a family in which one parent was British, but was effectively incapable of parenting his children. The other parent was a Tanzanian, and although a capable parent, had an appalling immigration history. The question for the court was whether it was in the best interests of the British children of the family to be separated from either parent in the interests of immigration control. There were three possible options for these children – firstly to remain in the UK (their home, and country of nationality) but to be separated from their mother and primary caregiver, secondly, to remain with their mother but to have to leave their father and home to travel to Tanzania in order to do this, or thirdly, for the children to be allowed to remain with their mother in the UK by granting her leave to remain in the UK on the basis of her right to family life with her children, and their right to family life with her in the UK.
Lady Hale’s judgment held clearly that the best interests of the child were to be a ‘primary consideration’, albeit not the only consideration. The case made it clear that the rights of British children who were not removable from the UK had to be considered in relation to decisions to remove their parents from the UK even if there was no threat of removal of the children from the UK. The question was one of practicalities – if the children’s only capable parent was to be removed from the UK, then their only choice was to travel with her in order to receive the care and parenting they needed. Children were not to be punished for the poor immigration history of their parents.
The crucial part of the judgment in relation to children’s rights was that Lady Hale found that the children’s rights and best interests must be considered first, and other competing rights (including the right of the state to control immigration) considered after. Lord Kerr, in his concurring judgement stated that the best interests of children was a factor which must rank higher than any other, and that it would take issues of considerable force to outweigh a course of action which was clearly in the best interests of the child.
Lady Hale also made the important point that the wishes of the child should be heard in the context of such decisions. This was a clear call to the judiciary and to practising lawyers to hear the voice of the children involved in the cases they were bringing, and to bring that to the fore, something that MiCLU holds as its core belief when working with children.
