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Children's interests do not dictate deportation outcomes: Supreme Court

27 November 2013

Children's interests are a primary consideration, but do not not have to be put ahead of every other consideration in a decision whether to deport a family, the UK Supreme Court ruled today.

Five judges affirmed the decision of the Court of Session in upholding the Home Secretary's decision to deport the Zoumbas family, Congolese nationals currently living in Glasgow, including three children aged nine, five and two. Both the parents had entered the UK illegally on false documents, Mrs Zoumbas on two occasions having been deported once already, and had had claims to asylum refused. They married in the UK in 2003.

Mr Zoumbas claimed the family circumstances had changed as they had established a family life in the UK which should be respected under article 8 of the European Convention. The Home Secretary decided that his submissions did not amount to a fresh claim because they did not create a reasonable prospect of success before an immigration judge. A petition for judicial review failed before the Outer and Inner House, and Mr Zoumbas appealed again.

Before the Supreme Court he argued that the Home Secretary had failed to have regard to te best interests of the children, which Lord Kerr in the ZH (Tanzania) case had said should ordinarily dictate the outcome; that it was irrational to conclude that their interests would be best served by their removal to the Congo; and that the Home Secretary had reached the wrong conclusion as to prospects of success.

Delivering a unanimous judgment of the court, Lord Hodge said that in the ZH case the court had been dealing with British citizens, unlike the children here. He had said that no factor should be given greater weight than the interests of a child, and the evaluation exercise required excluded any hardline general rule.

The Home Secretary's letter had to be read as a whole and its substance analysed. There was nothing wrong with her usung a template letter in which her conclusion was followed by her reasoning: what was important was that the best interests of the children were at the forefront of her mind. (The court gave certain advice on the presentation of letters so as to make challenges such as the present less likely.) 

The children were not British citizens, and it was legitimate for the Home Secretary to ask herself whether it would have been proportionate to remove the parents if they had no children and then, considering the children's best interests, ask if their wellbeing altered the provisional balance in favour of removal. It could not be said that the Home Secretary had reached the wrong conclusion.

Click here to access the judgment.

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