INTRODUCTION

Following the decision of the Supreme Court in ZH(Tanzania) earlier this year, it could readily have been accepted that UKBA’s Section 55 duty readily applied and more significantly only in circumstances where the parents subject to removal had British children. There is no power to remove or deport a person who is a United Kingdom citizen: Immigration Act 1971, section 3(5) and (6) as they have a right of abode in the UK, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance. However following the recent case of Tinizaray in October 2011, it is clear that despite UKBA’s view to the contrary in that case, the scope of the duty and the applicable guidance applies equally where an entire family of overstayers seeks to rely on UKBA’s proactive S.55 duty even where the child in question had no basis of stay in the United Kingdom. Thus in appropriate cases where no British citizen or a person with settled status is involved at all, reliance on Article 8 of the ECHR may result in a grant of leave to remain where following the required balancing exercise in relation to proportionality issues, the consideration of the best interests of the child understood as a primary consideration outweigh the strength of any other considerations.

RELEVANT LAW

Article 8 of the European Convention on Human Rights ( ECHR):

"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the United Nations Convention on the Rights of the Child(UNCRC):

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 12 of UNCRC provides:

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".

Section 55 of the Borders, Citizenship and Immigration Act 2009, ( BCIA ) provides:

55. Duty regarding the welfare of children

"(1)The Secretary of State must make arrangements for ensuring that—
(a)the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2)The functions referred to in subsection (1) are—
(a)any function of the Secretary of State in relation to immigration, asylum or nationality;………”

This S.55 duty, in an immigration context, requires the Secretary of State taking any decisions about immigration, asylum, deportation or removal that involves a child must be taken having regard to the need to safeguard and promote the welfare of that child.

ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4

The issue in the case concerned the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK, however a much more specific question was as regards what circumstances permitted the removal or deportation of a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave the UK.

The appellant mother was a national of Tanzania who arrived in the UK in December 1995. She made three unsuccessful claims for asylum, one in her own identity and two in false identities. In 1997 she met and formed a relationship with a British citizen. They had two children, a daughter born in 1998 and a son born in 2001. The children were both British citizens, having been born in the UK to parents, one of whom was a British citizen. They had lived in the UK with their mother all their lives and they attended local schools. Their parents separated in 2005 however their father continued to see them regularly, visiting approximately twice a month for 4 to 5 days at a time. Following a diagnosis of HIV in 2007 he lived on disability living allowance with his parents and his wife and was reported to drink a great deal.

The mother’s immigration history was described as “appalling”. In 2001, shortly before the birth of her son, she made a human rights application, claiming that her removal would be in breach of article 8 of the ECHR. This was refused in 2004 and her appeal was dismissed later that year. Further in 2004 she and the children applied for leave to remain under the “one-off family concession” which was then in force. This was refused in 2006 because of her previous fraudulent asylum claims. Meanwhile in 2005 she applied under a different policy, the “seven year child concession”. This too was refused, for similar reasons, later in 2006 and her attempts to have this judicially reviewed were unsuccessful. In 2007, fresh representations were made. The Secretary of State accepted these as a fresh claim but rejected it early in 2008. The mother’s appeal was dismissed in March 2008, however an application for reconsideration was successful. At the second stage of the reconsideration, the tribunal, having heard the evidence, dismissed the appeal. Permission to appeal was initially refused on the basis that, even if the Tribunal had been wrong to think that the children could stay in the UK with their father, they could live in Tanzania with their mother. Ward LJ eventually gave permission to appeal because he was troubled about the effect of their leaving upon their relationship with their father. Before the Court of Appeal, however, it was argued that the British citizenship of the children was a “trump card” preventing the removal of their mother. This was rejected as inconsistent with the authorities. In the Supreme Court it was argued on behalf of the mother that insufficient weight was given to the welfare of all children affected by decisions to remove their parents and in particular to the welfare of children who are British citizens. It was argued that this was incompatible with their right to respect for their family and private lives, considered in the light of the obligations of the United Kingdom under the United Nations Convention on the Rights of the Child. Those obligations now partially being reflected in the duty of the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009. The Secretary of State conceded in the Supreme Court that it would be disproportionate to remove the mother in the particular facts of this case, however she was concerned about the general principles which the Border Agency and appellate authorities should apply.

It was acknowledged on behalf of the Secretary of State that the S55 duty applies, not only to how children are looked after in the UK while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. In Lady Hale’s opinion, who gave the leading judgement, this meant that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8(2) such that both the Secretary of State and the tribunal will therefore have to address this in their decisions. Lady Hale was of the view that it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as “a primary consideration” which was not the same as “the primary consideration”, still less as “the paramount consideration”.

Lady Hale however made it clear that questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them and that the UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1:

“The term ‘best interests’ broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that:

 the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9);  the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).”

Lady Hale went on in her judgement to state that as the Federal Court of Australia further explained in Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568, para 32,“[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.” Lady Hale was of the opinion that this did not mean that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, was to consider those best interests first. Lady Hale was further of the view that that seemed to be the correct approach to these decisions in this country as well as in Australia.

Applying, the approach in Wan to the assessment of proportionality under Article 8(2), together with the factors identified in Strasbourg, Lady Hale was of the opinion that what was encompassed in the “best interests of the child” was as per what UNHCR says, ie that it broadly means the well-being of the child and that as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child’s integration in the UK and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away.

Lady Hale considered that although nationality is not a “trump card” it is of particular importance in assessing the best interests of any child as the UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8). Lady Hale referred to the case of Wan, where the Federal Court of Australia, pointed out that, when considering the possibility of the children accompanying their father to China, the tribunal had not considered any of the following matters, which the Court clearly regarded as important:

“(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother’s citizenship, ‘and of its protection and support, socially, culturally and medically, and in many other ways evoked by, but not confined to, the broad concept of lifestyle’ (Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5, (1998) 150 ALR 608, 614); (b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; (c) the loss of educational opportunities available to the children in Australia; and (d) their resultant isolation from the normal contacts of children with their mother and their mother’s family.”

Lady Hale ‘s judgement was thus that the children were British children not just through the “accident” of being born here, but by descent from a British parent; they had an unqualified right of abode here; they had lived here all their lives; they were being educated in the UK; they had other social links with the community in the UK; they had a good relationship with their father in the UK. Lady Hale was of the view that it is not enough to say that a young child may readily adapt to life in another country. She however observed 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 re-integrate in their own community, however it was very different in the case of children who have lived in the UK all their lives and are being expected to move to a country which they did not know and would be separated from a parent whom they also know well.

Lady Hale made if clear that the intrinsic importance of citizenship should not be played down because as citizens the children had rights which they would not be able to exercise if they moved to another country. They would lose the advantages of growing up and being educated in their own country, their own culture and their own language. They would have lost all this when they came back as adults. Lady Hale stated that in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration which meant that they must be considered first. She however clarified that they could be outweighed by the cumulative effect of other considerations.

In Lady Hale’s judgement, acknowledging that the best interests of the child must be a primary consideration in these cases immediately raised the question of how these are to be discovered. Her opinion was that an important part of this was discovering the child’s own views. Lady Hale emphasised that the important thing was that those conducting and deciding these cases should be alive to the point and prepared to ask the right questions. Lady Hale considered that 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 because while their interests may be the same as their parents’ this should not be taken for granted in every case.

In Lord Hope’s opinion the fact of British citizenship does not trump everything else, however it will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose those benefits and advantages for the rest of their childhood. In Lord Hope’ opinion the fact that the mother’s immigration status was precarious when the children 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, however 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.

In Lord Kerr’s judgement, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests, however this is not a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. Lord Kerr stated that it is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. In Lord Kerr’s opinion what is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.

Further in Lord Kerr’s opinion, to diminish a child’s right to assert his or her nationality will not normally be in his or her best interests and that consideration must therefore feature in the determination of where the best interests lie. If a child is a British citizen, this has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child will live.

The Supreme Court therefore allowed the mother's appeal on the basis that her two children's best interests were that they should remain in the United Kingdom and that, in consequence, she should be permitted to remain here with them exercising her right to a family life with them. The leading judgment was delivered by Lady Hale. Her judgment provides detailed guidance as to how a decision-maker should approach the question of how to consider and give effect to the best interests of a child when considering an immigration decision affecting that child.

THE ADMINSTRATIVE COURT PROVIDES GUIDANCE IN ARTICLE 8 CHILDREN CASES AS TO THE SCOPE OF THE S.55 DUTY

The case of Tinizaray raised the question of the application of Section 55 of the Borders, Citizenship and Immigration Act 2009 ("BCIA") and of the decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4.

ZAIRA TINIZARAY v SSHD [2011] EWHC 1850 (Admin)

The principal ground on which judicial review was sought was that the Secretary of State , in taking four decisions since late 2009 with the latest on 3 March 2011, failed to pay due regard to the claimant’s child’s welfare. It was argued on behalf of the claimant and her two dependants that these decisions failed to give effect to the legitimate expectations of each family member and to their protected rights under article 8 of the ECHR.

The application for indefinite leave to remain made on 18 December 2008 relying on the 7year concession and Article 8 of the ECHR was made by three family members who are Ecuadorian nationals. Zaira and her mother arrived in the United Kingdom from Ecuador illegally as economic migrants on 8 August 2001 and avoided contact with any Immigration Officer and any other agencies ever since. Zaira was pregnant on arrival and she gave birth to Angeles on 1 May 2002. All that was known about Angeles's father was that he was an Ecuadorian national who had remained in Ecuador and had never had any contact with Angeles since she was born.

The application was initially refused by the Secretary of in a letter dated 3 September 2009 with the Secretary of State making it clear that the application could not be considered by reference to the withdrawn policy DP5/96, a position that on behalf of Zaira, was accepted by the time of the hearing to be correct. This decision also refused the application on the basis that the family's connection with the UK was not sufficient to engage article 8 and that, in any event, was not sufficient to displace the normal practice of removing those who have remained in the UK unlawfully.

Further representations were made on behalf of the family on 11 September 2009 and 15 October 2009 asking for a reconsideration of this decision. By decision of 9 December 2009 the Secretary of State refused the application on the basis that Zaira was able to continue to work and support her mother and daughter if the family returned to Ecuador. Account had been taken of Angeles being born in the UK and that she had attended school here for almost 3 years, however, the Secretary of State considered that she was still young and could adapt to life in Ecuador. Judicial review proceedings were commenced however on granting permission to apply for judicial review, it was directed that the Secretary of State in its 9 December 2009 decision should have, but appeared not to have, given consideration to the article 8 rights of both Angeles and her grandmother in the light of the coming into force of section 55 of the BCIA in November 2009. Zaira's solicitors submitted further information about the family in a letter dated 24 April 2010. The Secretary of State in a decision of 16 June 2010 refused Zaira‘s application noting despite the fact that Angeles had been in the UK for 8years old she was still very young and could easily adapt to life in Ecuador and that there was a possibility that her father may still be in Ecuador and she could be reunited with her father and that Angeles could easily adapt to school in Ecuador and also that she could continue to live with her mother and grandmother in Ecuador. The Secretary of State also noted that whilst attending state school in the UK Angeles may have taken the school place of a child who would have been settled in the United Kingdom.

When the Supreme Court handed down its decision in ZH (Tanzania) on 1 February 2011, Zaira's solicitors then made a fourth application to the Secretary of State on her behalf in a letter dated 1 Mach 2011, relying particularly on that decision and on the contention that the earlier decisions had not, as required by section 55 of the BCIA as explained in ZH, given any sufficient consideration of Angeles's best interests. On 3 March 2011, the Secretary of State replied refusing that application and in relation to the position of Angeles, the letter stated inter alia that in a clear distinction from ZH(Tanzania) neither Zaira nor Angeles nor Zaira’s mother have a right of abode in the UK and they would all return to Ecuador as a family unit and there is nothing to prevent Angeles from continuing her education in Ecuador.

HH Judge Anthony Thornton in this case summarised the duty imposed on an immigration decision-maker when subject to a section 55 BCIA duty :

(1) When considering whether it is proportionate to grant or refuse a parent or grandparent of a child living with that person indefinite leave to remain in the United Kingdom or to remove that person from the United Kingdom, the decision-maker must balance the reason for expulsion or refusal against the impact upon the child, particularly when the child can reasonably be expected to follow the removed parent or grandparent.

(2) The child's best interests must be taken account of in undertaking this balancing exercise. These best interests that are referred to are the child's upbringing and well-being in general and whether it is reasonable to expect the child to live in another country.

(3) These best interests must be a primary consideration which should be considered first. These interests are, however, not paramount. However, any other consideration should not be treated as inherently more significant but the strength of these other considerations may, when taken together, outweigh the child's best interests.

(4) The nationality of the child must be taken account of. That nationality is of particular but not decisive importance, particularly if the child is British since deportation would deprive that child of her country of origin and the protection and support that she has acquired socially, culturally and medically from growing up in a British lifestyle and would also lead to a social and linguistic disruption and a loss of educational opportunities. Equally, the fact that a child is non-British may ensure that deportation is of less significance for her but her non-British nationality is not of decisive importance.

(5) The views of a child who is capable of forming her own views in all matters affecting her must be heard and due weight must be given to them in accordance with her age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained.

HH Antony Thornton QC noted that Lady Hale in ZH stressed in her judgment that it is essential to obtain all the necessary information about the child in other ways before the decision is taken and that to do this, the right questions must be asked of the child and others to obtain a full and fair understanding of the child's situation and views. This might include information obtained from the Child and Family Court Advisory and Support Service or the local Children's Services Authority, if those services can be persuaded to help. HH Antony Thornton QC made it clear that overall, Lady Hale's judgment stresses that it is essential that the right questions must be asked by the decision-maker and answered by the child and on behalf of the child at the right time in the decision-making process. HH Antony Thornton QC observed that the Secretary of State had issued statutory guidance to the UKBA on making arrangements to safeguard and promote the welfare of children: Every Child Matters – Change for Children, however it was noted that no separate instructions have been inserted into the Immigration Directorate Instructions relating to Article 8 immigration decision-making. Moreover, no separate questionnaire had been issued which can be filled out by an applicant for decisions of the kind sought in this case which provides questions relevant to a determination of an affected child's best interests

HH Antony Thornton QC was of the view that on considering what should be taken into account when considering the welfare and best interests of a child, it is clearly relevant to have regard to the matters specified in the statutory checklist provided for by section 1 of the Children's Act 1989. It was clarified that these matters must be taken into account whenever a court is concerned with an application for a prohibited steps order, a residence order, a specific issue order or a special guardianship order as these decisions are ones which require the welfare and bests interests of a child to be taken into account. HH Antony Thornton QC considered that the same matters are therefore clearly ones that should be taken account of when a decision-maker is making a decision that requires the exercise of a section 55 duty. Such matters requiring the Court to have regard to :

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.

HH Antony Thornton QC noted that the decision in this case was one that related to three separate family members, two of whom were described as being Zaira's dependents in the application and as such each family member should have been considered separately since each had separate, albeit related, Article 8 rights and interests. HH Antony Thornton QC ‘s judgement in particular finds at paragraphs 24 to 26 that:

“24. It is also clear that the decision-maker was greatly hampered by the paucity of the information supplied by those preparing, or advising on the preparation of, the various applications made by and on behalf of the family members. It is of course the case that only the last application was made following the Hale guidance, set out with such clarity in ZH, had been promulgated and that last application was submitted in a letter dated 3 March 2011 only 29 days after the decision in ZH had been handed down. As the guidance makes clear, it is not sufficient for the decision-maker to rely solely on information volunteered by a child's parent, particularly if it is clear that that information is either incomplete or potentially slanted. In such cases, further information must be sought by the decision-maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires and seeking or soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children's welfare groups.

25. In this case, the decision maker needed to have detailed information about Angeles's life in England over the entire 9 years of her life including detailed information of where she had lived and was now living, her relationship with her mother and grandmother, her entire educational history, her social network and her aptitudes and future predictions for her further all-round development if she remained in England for the remainder of her childhood. This information needed to be compared with what her life would be like if she moved to Ecuador. That would require detailed information from Zaira and Vicenta as to how they had lived and maintained themselves in England and as to their and Angeles's life-style, including where and how they would live and maintain themselves, if they returned to Ecuador. Detailed information about the relevant schools and school system that Angeles would attend in Ecuador would also be needed. All this information was required to enable a balance view to be formed as to what was in her best interests. The decision- maker also needed to ascertain, or be properly informed about Angeles's own views, and it is difficult to see how her views could be objectively and fairly obtained without someone other than Zaira speaking to her and exploring with her in depth her feelings, attitudes and preferences. If those views were to be obtained by a third party source rather than the decision-maker, it is difficult to see how, in this case, the decision-maker could proceed without first commissioning, or seeking from Zaira, an appropriate assessment or report from that third party source. Finally, more detailed and up to date reports from Angeles's school, church and any social group that she participated in would seem to be necessary.

26 Each decision, and certainly the last made in March 2011, needed a complete set of information with all appropriate additions from the information available since the previous decision. That would not necessarily involve further third party interviews but further school reports and information about any changes in circumstance would be needed”.

Taking account of the Hale and statutory guidance and the general conclusions as to the information available to the decision-maker in this case, HH Antony Thornton QC generally concluded that :

(1) The information available to the decision-maker was self-evidently woefully inadequate. It was true that its deficiencies are only clearly evident as a result of the ZH decision but, that said, it was not possible for the decision-maker to form a balanced view as to what course of action was in Angeles's best interests and much of the missing information could have been obtained by appropriate requests for it to be supplied that could have been directed to the applicant's solicitor and to Angeles's school and appropriate third party agencies.

(2) No weight appeared to have been placed on the fact that Angeles was as close as it is possible to be to being a British citizen without having acquired citizenship. She was born and had always lived in England, she had no contact with Ecuador that was revealed, she had no contact with her father and never had such contact, she was not proficient in Spanish and her reported views were to the effect that her developmental welfare would or could well be adversely affected by an enforced move to Ecuador. Finally, she was reported to be firmly and emotionally attached to England with no wish to be displaced. No consideration was given as to whether she would need professional guidance and assistance before any enforced move to Ecuador took place if such was to occur.

(3) The decision-maker, particularly in the June 2010 decision, understandably but incorrectly made certain adverse assumptions about Zaira and also about Angeles's ability to fit into the Ecuadorian school system and way of life without there being any sufficient underlying factual information available on which to base those conclusions. For example, it was assumed that Angeles would be able to slot satisfactorily into the Ecuadorian school system aged 9 even though she could not currently read or write in Spanish.

HH Antony Thornton QC held that each decision was flawed as each decision was not properly informed about what was in Angeles's best interests and had only sparse information about Zaira's and her mother’s situation in both England and Ecuador. Thus, the decisions did not give, and could not have given, any appropriate consideration, let alone primary consideration, of Angeles's best interests. It was concluded that each of the four decisions be set aside and that it was for the parties to decide whether, or how the applications for leave to remain should be addressed in the future.

OVERVIEW OF TINIZARAY

Despite the clear and sustained evasion of immigration control in Tinizaray and the fact that neither the parent/grandmother nor the child were British, the Administrative Court appears to have gone further than ZH(Tanzania) with the result that the reasoning and outcome in Tinizaray seems to open the door for an entire family of overstayers to seek to remain in the United Kingdom by obliging the Secretary of State to adhere to its S.55 duty in the same manner as would apply when considering a family with a child who is a British citizen in removal cases. In HH Antony Thornton QC ’s view “No weight appears to have been placed on the fact that Angeles was as close as it is possible to be to being a British citizen without having acquired citizenship”. Thus there is clearly to be no differential treatment in the undertaking of the S.55 duty whether the facts of the case are those as in ZH(Tanzania) or as in Tinizaray. This is not surprising as in order to reach a decision on proportionality following a careful balancing exercise, the Secretary of State needs after all to have all relevant information and evidence impacting upon the child in order to fully consider the welfare and bests interests of the child should a decision be taken to remove the child along with other adult family members.

Even though in Tinizaray the family was not able to rely on the withdrawn 7year policy concession, it appears that in an appropriate case, a well-prepared application providing as much information and evidence as possible with the Secretary fulfilling adequately its S55 duty during the decision making process, an overstaying family with a child with long residence as in Tinizaray may not be disadvantaged much by the withdrawal of the policy. The difference however is that where successful in such applications making reliance upon Article 8, only limited Discretionary Leave to remain is likely to be granted as opposed to permanent residence which usually followed successful applications relying on the 7year concessionary policy.

The case of Tinizaray took the principles set out in ZH(Tanzania) to another level. ZH(Tanzania) was notified on 1 February 2011. The last refusal decision from the Secretary of State in Tinizaray was dated 3 March 2011, however despite the fact that the Supreme Court had notified its decision a month earlier and Lady Hale had made it clear in ZH(Tanzania) that it was important that those conducting and deciding these types of cases should be prepared to ask the right questions, answered by the child and on behalf of the child at the right time in the decision-making process, it was noted in Tinizaray that apart from the little information that had been sent by the legal representatives no further information was sought by or provided to the Secretary of State. How then could the Secretary of State have adequately and seriously undertaken its S.55 duty and made the right decision without asking the right questions as occurred in Tinizaray? Perhaps the Secretary of State can be forgiven for failing to take her S.55 duty seriously as part of her argument was that Tiniziray could be distinguished from ZH(Tanzania) as Angeles not being a British citizen had no right of abode in the UK. It is therefore no wonder that whilst setting out guidance, the Administrative Court noted that no separate instructions have been inserted into UKBA’s Immigration Directorate Instructions relating to article 8 immigration decision-making and further that no separate questionnaire has been issued which can be filled out by an applicant for decisions of the kind sought in this case which provides questions relevant to a determination of an affected child's best interests.

Although it was noted in Tinizaray that it is not sufficient for the decision-maker to rely solely on information volunteered by a child's parents, it is also important however to note that HH Antony Thornton QC observed that the Secretary of State was greatly hampered by the paucity of the information supplied by those preparing, or advising on the preparation of, the various applications made by and on behalf of the family members. It may therefore be prudent for legal representatives to undertake the following action among other matters before and during the application process:

(2). Obtain detailed witness statements from the parents or other relevant family members or relevant third parties in order to address in particular some of the issues raised in paragraph 25 of Tiniziray.

(3). For the legal representative to be prepared to attend any interviews with the family and child arranged by UKBA

(4). With consent, obtain as much information as possible from third parties such as the child’s friends, friends of the family, the family’s church, the child’s social activities and school reports from the child’s school where relevant.

(5). Anticipate, according to the facts of each case, what information and evidence may be required by UKBA and seek to obtain that with the family’s consent if to be obtained from third parties.

(6). Advice the family what sort of information/reports UKBA may reasonably be expected to obtain from relevant agencies.

(7). Where no progress appears to have been made by UKBA on an outstanding application, in an appropriate case, actively seek to enquire in writing with UKBA what steps they have taken as part of the decision making process in furtherance of their S.55 duty - for example when and whether interviews will be conducted, whether UKBA has sought assessments and reports of other agencies such as local authority social services, CAFCAS or local children's welfare groups

Thus both ZH(Tanzania) and Tinizaray contemplate and anticipate that legal representatives will be more involved during the decision-making process where the S55 duty arises- involvement which the Secretary of State may not welcome much.

Following Tinizaray, it is anticipated separate Immigration Directorate Instructions to UKBA caseworkers on Article 8 in relation to S.55 maybe published. If to be published it remains to be seen whether UKBA may try somehow to reduce or shift some of its obligations and require the applicant with their legal representative to seek themselves to obtain some if not much of the information and evidence required in order to reach an informed decision. Questionnaires or even a new application form asking relevant questions and requesting relevant evidence may also be forthcoming.

(1). Advice the parents and child/children and other family members that they may be interviewed by UKBA during the application process so that further information or questions may be asked.

CONCLUSION

The 7year concessionary policy may have been withdrawn with the Secretary of State perhaps assuming(wrongly) that only Article 8 considerations would come into play in relation to considering applications of families with children with long residence. It appears from the Secretary of State’s arguments in Tinizaray that the coming into force of S.55 of the 2009 Act was not an event the Secretary of State contemplated might result in a family as in Tinizaray’s circumstances seeking to rely upon that S.55 duty with the result that quite possibly at the end of the process a grant of leave to remain may be resultant. Section 55 thus has the effect of slightly complicating matters for UKBA, requiring their proactive involvement where children are concerned thus obliging them to take the welfare and bests interest of children who are in the UK seriously whether or not they are British citizens.

A Solicitor, Advanced Level 3

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