In matters involving children, the guiding principle is “best interest of children under section 55” in immigration cases.
Section 55 of the Borders, Citizenship and Immigration Act 2009
In general, the ‘best interests’ covers all aspects of the wellbeing of children. The government
guidance (‘Every Child Matters’*) states that the duty to safeguard and promote the wellbeing of
- children covers:
- protection from maltreatment
- preventing impairment of physical and mental health
- preventing impairment of development, including ‘physical, intellectual, emotional, social or
- behavioural development
*Every Child Matters – Statutory guidance to the UK Border Agency on making arrangements to
- safeguard and promote the welfare of children issued under section 55 of the Borders, Citizenship
- and Immigration Act 2009 – November 2009
What does it mean for a child’s best interests to be a “primary consideration”?
This means that the decision-making process must take into account and carefully consider a child’s best interests as a very important factor. But that does not imply that it is the most crucial factor. Other factors must be weighed against it and may even outweigh it. The public interest in deporting “foreign national offenders,” for example, may outweigh the best interests in a deportation case. Every case will be evaluated based on its unique facts.
What criteria is there for making an exception to deportation based on having a family with children?
The person facing deportation must demonstrate that they have a “subsisting parental relationship” with a qualifying child and that it would be “unduly harsh” for the child to remain in the UK if their parent is deported or for the child to have to leave the UK in order to continue to enjoy family life with the parent if the parent is deported. If these requirements are met, deporting the person will violate their right to a family life. It is frequently referred to as an Article 8 challenge to deportation because this right is protected by Article 8 of the European Convention on Human Rights.
What does ‘unduly harsh’ mean?
This is described as being “excessively cruel” by the Home Office.
In HA (Iraq) v. SSHD [2020] EWCA Civ 1176, the Court of Appeal has provided clarification on the definition of the “unduly harsh” test. Although ‘unduly harsh’ is more than ‘difficult’ or ‘uncomfortable,’ it was stated that every case needed to be carefully considered based on its unique facts and that it was incorrect to demand that the impact go beyond the usual level of harshness that would be felt by ‘any child’ experiencing parental separation.
This means that it is crucial to present as much information and evidence as possible to demonstrate the anticipated effects of prolonged and probably permanent separation from a parent on each individual child.
What legal standard is used to determine the best interests of the child in a deportation case?
The law declares that deporting “foreign criminals” is in the public interest. An exception to this rule is based on the existence of a “qualifying child” in the family. However, under this exception, only those with sentences of less than 4 years in prison will have their cases taken into consideration. For those who have received a 4-year or longer sentence to remain in the UK, they must demonstrate “very compelling circumstances” that go above and beyond the exception and outweigh the public interest in deportation.
What sort of proof should a person compile to demonstrate that keeping them in the country is in the best interests of their child?
It’s critical to gather proof of the impact your time in jail has had on your child. This is due to the fact that when a child’s parent is imprisoned, this frequently has a detrimental influence on the child’s wellness. The difficulties a kid faces during this time of separation can assist paint a picture of how they may endure if the parent is deported and the separation lasts for a significantly longer time or is permanent.
For instance, if a child’s well-being deteriorates, they may require counselling that is arranged by their GP.
The child’s school could see behavioural changes in them. For instance, the youngster might: retreat; turn hostile or disruptive; do markedly worse in school.
What is the definition of a qualifying child?
A ‘qualifying child’ is a child who is
- A British citizen; or
- Has lived in the UK continuously for at least 7 years immediately before the date of the immigration decision.
