The Supreme Court handed down its judgment in the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 on 4 February 2011, an appeal of a decision to deport the appellant on the basis that it constituted a disproportionate interference with her right to respect for her private and family life, guaranteed by article 8 of the European Convention on Human Rights. The issue in that case was 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. The Court also examined the more narrow issue of when it might be permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the UK will also have to leave.

The mother in this case was a Tanzanian national who arrived in the UK in December 1995 and made three unsuccessful claims for asylum, two of which were under false identities. She now has two children born in the UK, their father being a British citizen. After their separation in 2005, the father continued to see their children recently. After the father’s diagnosis with HIV in 2007 the mother’s fresh claim was considered by the Secretary of State but rejected it. The Asylum and Immigration Tribunal’s finding that the children could reasonably be expected to follow their mother to Tanzania was upheld by the Court of Appeal

Lady Hale, giving the leading judgment of the Court, noted first that there is no power to remove a person who is a UK citizen (see section 3(5) and (6) of the Immigration Act 1971), but if a non-citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter, and there is no machinery for consulting them or giving independent consideration to their views.

She further held that in making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration, and this will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the child’s own views. Whether the children had British citizenship was of particular importance in assessing their best interests: not only were the children born in the UK, but they were also nationals by descent from a British parent; they possessed an unqualified right of abode, had lived there all their lives, were being educated there, had their social links with the community and had a good relationship with their father there. It was not enough to say that a young child may readily adapt to life in another country.

Once the children’s best interests had been identified, the authorities were then required to assess whether those interests were outweighed by any other considerations such as the need to maintain a proper and efficient system of immigration control. The inevitable result of removing their sole carer would be that they would have to leave with her. The children would lose the benefits of growing up in this country, and would have lost this were they to return as adults. Lady Hale concluded that, as the Secretary of State had concluded, there could only be one answer.

Lord Hope observed that British citizenship will usually be 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 the benefits and advantages of this citizenship for the rest of their childhood. The fact the mother’s immigration status was precarious when the children were conceived cannot be held against the children in the assessment of whether their best interests are outweighed by the strength of any other considerations. He concluded that 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.

Lord Kerr added that the fact that a child is a British citizen also has an independent value, freestanding of the debate in relation to where the best interests of the child lie and this must weigh in the balance in a decision that may affect where a child may live.

The Supreme Court unanimously allowed the appeal.