Case Comment: ZH (Tanzania) v SSHD  UKSC 4
04 Friday Feb 2011
The five bench Supreme Court judgment in this case is a landmark decision following in the line of significant judgments from the House of Lords on Article 8 ECHR which have emerged in the last few years including in particular Beoku-Betts  UKHL 38, Chikwamba  UKHL 40, and EB (Kosovo)  UKHL 41.
The case concerned two British children (aged 12 and 9 at the time of judgment) who were born in the UK to a father who was a British citizen and a mother who was a national of Tanzania. The mother arrived in the UK at the age of 20 and made three unsuccessful asylum claims, one in her own identity and two in false identities. The children lived with their mother at all times. The parents separated in 2005 although the father continued to see his children regularly. The Court of Appeal upheld a finding by the tribunal that the children could reasonably be expected to follow their mother to Tanzania:  EWCA Civ 691, para. 27.
The Supreme Court unanimously held that the best interests of the child had to be considered and given paramount weight as part of the assessment of proportionality under Article 8 ECHR. Lord Kerr said at para. 46:
“It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, 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. It is not merely one consideration that weighs in the balance alongside other competing factors. 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. 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. 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.” [Emphasis added]
It is no surprise at all that such a strong judgment acknowledging the rights of child under international and domestic law has emanated from a bench which includes Lady Hale, who gave the leading judgment. It was her ground-breaking judgment in the House of Lords in R (Williamson)  UKHL 15 which alone analysed the international law (UNCRC) on the rights of children and noted at para. 71 that it was a case about children where the battle had been fought on ground selected by adults and that no one was appointed in the Lords or below to speak on behalf of the children. That unfortunate situation was not replicated in ZH (Tanzania) as the rights of the children were separately represented by interveners.
The case is significant for a number of reasons. Firstly, Lady Hale acknowledges the shift in jurisprudence on Article 8 and children at the Strasbourg level in the context of immigration and asylum from the earlier decisions in which the Commission and Court appeared to have focused more on the failings of the parents rather than the interests of the child (para. 20). The more recent decisions in Uner v Netherlands, Maslov v Austria, and da Silva, Hoogkamer v Netherlands correctly placed due emphasis on the best interests of the child as a significant factor.
Secondly, the judgment (Lady Hale at para. 21) recognises that in this area (immigration) the ECHR is not to be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. As such the provisions of the United Nations Convention on the Rights of the Child 1989 (UNCRC) were fundamental to the proper interpretation of the domestic provisions, in particularly following the long over due lifting by the UK of the general reservation to the UNCRC concerning immigration matters in 2008.
Thirdly, the Court places intrinsic significance on the fact of the children’s British citizenship. Whilst this was not a trump card, it was important to recognise that the children had rights which they would not be able to exercise if they move to another country. They would lose the advantages of growing up in their own country, their own culture and their own language. Lord Kerr states (para. 47) that the nationality must be considered in two aspects. First in its role as a contributor to the debate as to where the child’s best interests lie, and secondly as having independent value which must weigh in the balance in any decision that may affect where a child will live.
Fourthly, and in light of the proper analysis of the weight to be placed on the best interests of the child, it was an error of law to place over emphasis on the precarious nature of the mother’s immigration status before her first child was born (para. 42). As Lady Hale succinctly put it at para. 44:
“The fact that the mother’s immigration status was precarious when they 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. But 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.”
Fifthly, the judgment reinforces the fact that consideration of the issue of whether the children could reasonably be expected to follow their mother to Tanzania could not properly be any more than a factor to be taken into account in considering proportionality under Article 8 ECHR. Given the clear steer in the judgment as to the primacy of the principle of best interests of the child, the question of whether it is reasonable to expect someone to relocate, could only be of second tier importance. This should ensure that a consistent approach is taken at the tribunal level going forward, where in a number of cases it has been held as a trump card.
The judgment, which clarifies a number of issues in relation to immigration and child rights, will have a significant impact on the assessment of appeals at the tribunal level and beyond. In its result the judgment very much echoes the spirit of Lord Bingham’s statement in EB (Kosovo) at para. 12 to effect that it will “rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child”. [Emphasis added]
The voice of the child has again been raised above the parapet.