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Child rights have had a significant impact on the UK’s system of
immigration control. This course, delivered by barrister and lecturer
Ben Amunwa, will discuss the key trends and their effect on recent legal
During this webinar viewers will be briefed on the following statutes which shape child rights: UN
Convention on the Rights of the Child 1989 European Convention on Human Rights Charter
of Fundamental Rights of the European Union Borders, Citizenship and Immigration Act 2009 Children Act 2004 ‘Every child matters’ green paper (2003)
course will also consider the following recent case law and its impact
upon recent child rights litigation in the immigration context: Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60 MM (Lebanon) & Ors v Secretary of State and another  UKSC 10
What are the requirements?
Watch the recorded webinar and review the reference notes and optional evaluation form to test your legal knowledge.
This course provides 0.5 – 1 CPD points (depending on length of time spent reviewing the supporting documentation).
On completion of this course you will:
• Have considered the relevant statues effecting this area of law
• Be familiar with the 2 landmark cases detailed above and appreciate their significance in respect of the impact which they have had on current litigation
Called to the Bar in 2013, Ben enjoys a thriving practice in commercial, civil and public law. He also loves to train lawyers and non-lawyers in a variety of areas of law, putting to work his creative and presentation skills.
Ben runs a popular legal blog, called www.lawmostly.com, which aims to make the law accessible to a wider audience.
His advocacy is praised by Judges, opponents and clients. A member of 36 Civil, Ben is known for his exceptional client care and attention to detail in complex and urgent cases. Ben provides practical, cost-effective and punctual advice to a range of clients, including local authorities, professionals, businesses and individuals.
Before coming to the Bar, Ben spent over a decade in the charity sector supporting individuals in crisis. His experience of management and media enables him to perform calmly under pressure. Clients value his accessible manner and his ability to explain difficult areas of law.
- representing a senior doctor in a race discrimination and harassment claim against an NHS Trust;
- securing a favourable settlement at mediation for a private client in a dispute over the construction of a multi-million pound house;
- successfully defending a teacher who faced regulatory prosecution for alleged professional misconduct over a period of 3 years;
- co-counsel in R (Medical Justice and others) v Secretary of State for the Home Department (2016). As featured in The Guardian, the case challenged the government’s reliance on a restrictive definition of torture to justify immigration detention.
- successfully defending a local authority in a judicial review concerning duties to children in need - R (SC) v London Borough of Ealing  EWHC 2765 (Admin) and representing in Court of Appeal proceedings.
Written and recorded by Ben Amunwa
Hello. My name is Ben among while on Dime a barrister based a 36 Bedford Row in London. This webinar is to do with child rights the protection of child rights in the immigration law context, and it will be useful for any caseworkers, solicitors and senior caseworkers in immigration on public law matters, Lady Hale, in the famous case of Zet H Tanzania, stated in paragraph 37 of her judgment. Children can sometimes surprise one that is true in life as it is in law, it seems, judging by some of the recent litigation at the Supreme Court level on the subject off child rights, I'm going to take you through this talk in three parts. The first part is to do with relevant statutes, that is all of the legal framework. The scaffolding essentially, that surrounds the issue off the protection of child rights in the immigration context in the UK, the second part will discuss the case off Hesham Ali. That's a relatively recent UK Supreme Court decision in the context, off deportation and finally the third part off this webinar will focus on a more recent case called mm Lebanon, which was to do with a legal challenge against the minimum income requirements contained in the secretary of state's appendix F M off the immigration rules. After that, we'll have a brief recap. I won't be looking at the future developments arising out of some of these trends in recent litigation. That's a subject for the following webinar, which is to come in due course. So relevant statutes at the international level. Then we have the U. N Convention on the Rights of the child. 1989. Now this U N convention contains several articles that are particularly opposite in the context off immigration litigation in the UK The first is Article three, subsection one, and that is the statement that the best interests off the child must be a primary consideration in all actions are affecting them. We'll come back to how that's being enacted domestically in a moment. But also of relevance is Article 12 a little mentioned article in the context off immigration. But it it's to do with the emphasis laid on the child's voice. This idea that decision makers ought to be obliged to take into consideration the views off the child, not just the best interests as deemed by other persons. But the actual voice of the child, What does the child want? We'll come back to its relevance in a moment, but I think it's probably interesting for most immigration practitioners to just pause there and to think. When was the last time that you read a tribunal determination at the first year? Or even the upper tribunal, which really went with this notion off child's voice and gave effect to, uh, what the child's views were? It's something that I think has bean underplayed and perhaps even under emphasized by claimant practitioners to some extent, and we don't see it really reflected in a strong way in the case law. We have been at the regional level, moving down from the international level, the European Convention of Human Rights, of course, and articulate off that convention to do with the rights to private on family life, which you will be familiar with, hopefully, but also at the regional level, we have the rather less mentioned on rather less litigated charter off fundamental rights off the European Union. Now the charter contains at least one provision that is relevant in the context of Childs rights. If you go to Article 24 3 you'll see there that there is a right to pursue to personal relationship and direct contact with both parents unless that is contrary to the child's interests. And that's particularly relevant. It might you, where you have you law issues arising in any given litigation. And so that may well be more relevant in cases where there is a right that is derived from or retained by way off rights under the citizen's directive at you Law moving to the domestic Fear that sweat fear that we've got Three Borders Citizenship and Immigration Act 2009 Section 55 off the B C. I. A 2009 of course, contains the domestic enactment off that international U. N. Convention on the rights of the child provisions to do with the best interests of the child. And essentially, Section 55 requires the immigration authorities in the UK to have regard to safeguarding and promoting the welfare off Children in all decisions affecting them. There is finally the Children Act 2004. Now the Children Act 2004 applies to public authorities. So if you happen to have a litigation such as on age assessment litigation, where a local authority is also joined as a defendant or co defendant with the secretary of state than the Section 10 duty in the Children Act 2004 may well apply on that section. Section 10 effectively mirrors section 55 requires the local authority toe have regard to safeguarding and promoting the interests off the child and their welfare. Also relevant in the background of this mix off MAWR is the policy dated 2003 cross governmental policy introduced by the Labour government. Think is a green paper back way back in 2000 and three, and that policy document was entitled Every child matters that contains a rather detailed overview guidelines emphasizing principles such as the need to take the decisions in cases that affect Children promptly. Andi, also to take into account their views and every child matters, does crop up from time to time in the learning of the upper tribunal decisions on immigration matters. It's slightly less mentioned in the cases which I'm going to talk about, but it does pose, I think, an interesting question. The question is, does every child really matter when it comes to the immigration context. And I suspect that because off the different way in which Article eight issues are approached in the context off criminal on noncriminal questions. My view is that the current framework off immigration law in the UK does not answer that question in the affirmative. And indeed, the interests of Children in cases where criminal activity has taken place are often significantly devalued. When a balancing act is carried out under Article eight, moving now into the second part off the discussion, I'm going to talk to a bit about the case off Hesham Ali in Brackets Iraq versus the secretary of state for the Home Department, 2016 U. K. S C. 60. This is a case that concerned the correct approach to proportionality in appeals brought by persons facing deportation due to criminal convictions in the UK So when we're thinking about Hesham Ali, this is a case in the deportation contact. So we're considering the deportation off foreign criminals, and it's those foreign criminals who raise the issue off there, protected rights to family and private life under Article eight, with which the Supreme Court was concerned now, in broad summary what was concluded by the Supreme Court was that when assessing the proportionality off, deporting somebody who's Article eight rights are going to be infringed. That assessment is not conducted entirely within the framework off the immigration rules. Now this all might seem to be slightly removed from the issue of child rights because we're talking really about Foreign criminals aren't way. But the fact is that in the vast majority off deportation appeals, the father is the person who's on the receiving end of the deportation order. Andi most often where article eighties relied upon there will be Children involved and Children affected. And, of course, the Supreme Court was concerned with immigration rules, which set the bar particularly high for foreign criminals under the rules, as they were at the time of the decision in Hesham Ali. What the deportee Mr Ali had to show was that there were very exceptional circumstances to justify raising Article eight as a barrier to deportation. And so it does concern and touch on child rights, albeit indirectly. But the Supreme Court took a step back from this. Andi, in a rather lengthy decision, arrived at the conclusion that the key question to be addressed under the old rules, and this is prior to amendments that came in following the Immigration Act 2014. So it's subject to that caveat. The Supreme Court found that the central question in these cases is whether a fair balance has been struck between the personal circumstances and individual rights off the deportee, the person being deported on and, on the other hand, the interests off the community. The public interest in firm and fair immigration control the public interest in removing foreign criminals. But that balancing exercise is conducted whilst giving substantial weight to the public interest in deporting foreign criminals as set out in the secretary of state's policy. So this essentially means that you have old fashioned weighing scales. But on the one hand, the weighing scales will always be heavier, because the secretary of state's policy to deport foreign criminals weighs heavily in the balance and judges have to take account off that substantial weight in the public interest of deporting foreign criminals. However, the Supreme Court also went on, and this is a paragraph between paragraphs 52 53. Supreme Court also went on to find that the pop public interest in favour off. Allowing the appeal is really a matter to be determined by the judge. And so there is leeway for the judge to tweak or adjust the balance in this exercise, even if the scales are heavily loaded against the person facing deportation. Now there are a number of other points made about the wider practice in Hesham Ali That should be followed by judges, and it's worth taking note of those briefly. So, for instance, a paragraph 84 in the judgments. I believe it was Lord Wilson who advised taking a balance sheet approach to the assessment of Article eight. So drawing up literally a table with two columns, one column showing the public interest in favor of the appellants and the other column showing the public interest in favour off deportation. I've not seen that often followed in the immigration tribunal, however, it is a practice that has caught on significantly in the context off extradition law. But where Hashem Ali gets rather more interesting for child rights issues is in Lord Kers dissenting judgment. Now, before you dismiss a discussion about a dissenting judgment because although it doesn't have any strictly binding status, in law. This is a highly persuasive and highly articulate dissent from Lord Kerr, which I think comes into its own in a subsequent case in the Supreme Court, which will discuss next. It's also 30 pages long, which is about half the length of the entire judgment in Hesham Ali. So it does reward careful study. And the reason that is is because, for instance, if one goes to paragraph 147 in Lord Curves dissenting judgment, he states there and I quote family life is not to be defined by the application of a Siri's off rules disturbance off. That precious aspect of existence is not avoided by a limited set of exemptions. So here's a look essentially taking aim at the very idea behind the immigration rules on deportation, because the idea is to provide a refined and very narrow Siris of exceptions through which clearly not many cases will be able to satisfy and get through to the other side. What he's saying is that you can't squeeze in family life into these rigid exceptions. There has to be some residual leeway for a decision maker outside off the rules, hence, coming back to this essential point in Hashem Ali that the rules don't totally govern the exercise off. Assessing proportionality under Article eight to moving on the next paragraph of Hesham Ali 148 Lord Kerr also writes, The rules do not permit consideration off the best interests off the Children concerned. Indeed, insofar as they envisage that where an alternative family member can care for a child, deportation will be proportionate. The rules positively disregard the Children's interest. And this, I think, is where Lord curves judgment begins to come into its own. Because essentially what we're considering here is the extent to which the immigration rules themselves actually embody and give effect to the statutory obligations off the secretary of state under the Human Rights Act, but also under Section 55 off the Borders, Citizenship and Immigration Act 2009. And that is a central question which arose in mm Lebanon, which will come to very shortly. And Lord Kurt developed these lines of criticism towards the human rights and Section 55 compliance within the rules. Also at paragraphs 158156 or so 162 on 169 and those should be listed in the hand out. And so whilst Lord Kerr was on this occasion in Hesham Ali, outnumbered by his fellow lords the concerns that he raised a clearly legitimate and I think there should be a careful review of the points made by Lord Kerr in any any form of litigation that is relying on this whole idea that the rules can be criticized for their lack of compliance with the wider legal framework in some of the statutes we've already referred to. But clearly when we moved from Hesham Ali to the next case, we're also moving from one context off deportation to another non criminal context off a appendix FM of the immigration rules. So that's also worth bearing in the back of your mind. Principles may not necessarily transfer readily from one context to the other. Go to talk to you about the third part off this webinar on its to do with the case of M M Lebanon, 2017 U. K s C. 10. This is a rather widely publicized case in which the claimants challenged the legality off what was called the minimum income requirements in Appendix FM off the immigration rules now for those of you unfamiliar with this part off the rules is actually the minimum in income requirements. Or am I ours set a threshold off income for non European national spouse is who were trying to get a visa to come into the UK, and that minimum income threshold was set at on is set at 18,600 gross for annual income, plus an additional £3800 for the first child if there is a child in the relationship and £2400 for each additional child beyond child number one. Alternatively, you can satisfy the M I ours by having savings off £16,000 plus 2.5 times the shortfall in the sponsor. The person is based in the UK in the sponsors income if they cannot meet the 18,600 threshold. So these are relatively demanding rules for the majority off applicants. So what happened to this big legal challenge? Well, on the central points, which waas to challenge the legality of the M. I. R's, the Supreme Court rejected that they found that the M my arms were in fact lawful, but they were troubled however, by the evidence that they saw, which included evidence off some 15,000 Children being adversely affected and separated from their families. By these rules, this was quite disturbing for the UK Supreme Court, particularly because off the fact that it impacted heavily on minors and you can see that really, in the judgment of paragraph number 80. The court also concluded that alternative sources of income, such as the future income that the non U national partner might be able to earn and also possible sources of funding from relatives, friends or third parties as they're known ought to be considered. But outside of the rules under Article eight, part of the discussion during the legal challenge was whether or not such alternative sources of funding were permitted under the secretary of state's immigration policy. Guidance on the operation of the M I Ours Onda Court concluded that these alternative source of funding could be considered, but they can't be considered under the rules. They have to be considered under Article eight. Outside the rules, Andi, they ordered at PARAGRAPH 100 that the guidance issued to caseworkers by the secretary of state needed to be amended accordingly so so far, one each for the claimant and the defendant. But on the on 1/3 point, the court also made a distinction between those parts of the rules that embodied public interest considerations on those parts of the rules of the more practical in nature. And what the courts say that Paragraph 76 is that rules which are more concerned with practical requirements, ought to be decided by judges with less deference given to the decision off the secretary of state. This is an interesting point, which hasn't really being developed much further since this judgment. And that's this. Throughout the immigration rules, there are only a relatively limited number off areas that could be said to embody public interest considerations. In fact, probably the clearest off them is in the deportation framework in Chapter 13. But many other parts of the rules are simply criteria that have to be ticked off have to be satisfied. And so it's worth thinking when approaching appeals on other litigation that, in fact, this judgment suggests that judges ought to be making their own minds up, ought not to be deferring unnecessarily to the Secretary of state's judgment on whether someone is within or outside off the rules. It has to be an independent assessment by the judge. Then there was some discussion off the extent to which the rules in Appendix FM and in particular the M I ours give effect to on respect the duty on the secretary of state to promote and safeguard the welfare off Children. And this is really where the claimants case excelled in. The defendant's case seemed to fall down. The court looked at the structure of the Appendix FM and right at the outset of Appendix FM in G e n 0.1 point one. That's really the first general section of Appendix FM. There's a reference there, rather off hand reference to the best interests of child on duty to safeguard Children's interests. The Supreme Court was not taken by this. It wasn't impressed it all and saw this brief, fleeting reference as being insufficient for the purposes of actually discharging the duty on the Secretary of State. The conclusion off the off the Supreme Court was at the m I ours on the policy that accompanied them, do not sufficiently protect the welfare of Children because, particularly under the guidance issued by the secretary of state, which I think dates back to August 2015. If the M I ours are not met by any given applicant, then a spouse could only be given a visa exceptionally. And when the secretary of state refers to exceptionally in this guidance, what they actually are talking about is, for instance, if a child is undergoing a major operation like surgery or to prevent abandonment. But only only, they say, in the policy if the spouses presence was necessary to alleviate matters. So what we're talking about here is an attempt by the secretary of state to again imposed these rigid and narrow exceptions within the rules and within the policies surrounding the rules. That essentially means that very, very few people can satisfy these exceptions. The Supreme Court was not impressed. The criteria were effectively found to be too stringent, and two failed to actually treat the best interests of the child is primary considerations. Andi in finding So the Supreme Court cited the judgments of the European Court of Human Rights in the case off Jeanette's on the Netherlands. 2015 number 60 e. H. R R. 17 at paragraph 91 off the Grand Chambers judgment, and it's worth just having a look at that paragraph 109 or Option ISS because at paragraph 109 the Grand Chamber describes the requirement that the authorities immigration authorities should consider. And I quote the practicality, feasibility and proportionality off any removal off a non national parent in order to give effective protection and sufficient weight to the best interests off the Children. What's interesting about the Grand Chamber's decision is that it seems to introduce a rather new texture to the language off child rights protection. In the immigration context, this idea of giving effective protection not just giving protection but protection that is effective, I think, describes the process off assessment that the decision maker must go through. Many of immigration sisters and practitioners will have seen decision letters, which pay scant regard to Section 55 duty. They refer to the section. They refer to the general language that it describes, but then they don't actually apply that duty to the facts. They don't actually conduct a careful and detailed inquiry that it really needs to give effective protection to the child's rights. In any given case, And of course, it could be said that what is effective protection in one case is not necessarily effective protection. In another case, if you have, for instance, an extremely vulnerable child, it is, of course, arguable that what effective protection demands It would be much more onerous and require much more detail than in any other given case. And I think that chimes well with wider case law in the Court of Appeal recently, which refers actually to the fact that where Children are concerned, there is no typical case. And so the decision maker, according to the Grand Chamber of the European Court of Human Rights and according to the UK Supreme Court, has to grapple with these questions, practicality, feasibility and proportionality it in a way that gives effect to these protections. And so the conclusion in mm Lebanon. What was surprisingly upbeat for the claimants because both the rules on the policy guidance were found to be unlawful because they failed to take a clear account off the Children duty on Secretary of State. The rules didn't reflect that the duty had bean or is complied with. And of course, Section 55 applies not only to the actual decision making made by the secretary of state, but also to the crafting of the rules to the very making of the rules and the making of policies. And so if the secretary state has failed to take into consideration 16 55 when drawing up these rules, then that in itself can render her rules and her policies vulnerable to legal challenge. And that's an interesting thought for litigators in this area, often on the lookout for fresh points to be taken on judicial review or on appeals, which may have the potential to go to the more senior courts because mm Lebanon was actually adjourned for a remedy decision to follow later. The interesting point here is the Supreme Court, whilst finding that the rules and the policies were unlawful to the extent that they fail to comply with Section 55 they didn't really sketch out or explain what type of language would be expected of the rules to be Section 55 compliant. And so the ball really is in the secretary of state's court to try to find a new way off, better reflecting Section 55 duties within its rules and to ensure that decision makers, following the rules and reading policy guidance, follow and give effect to that duty. So really there is more to come. Or there should be more to come not only on mm Lebanon, but also on the potential scope for further litigation targeting particular parts of the rules that are too stringent, perhaps, or that impacts quite heavily or disproportionately on Children through perhaps entry, clearance guidance or naturalization guidance, or also other parts off applications to settle other parts off the immigration framework. So there's definitely more to come on this topic, and I will also be providing a further webinar that will discuss, really, where do things go from here? What's next after Hesham Ali after mm Lebanon on some of the recent cases that have cropped up off the back of or in the aftermath off these quite important cases. But it's worth pondering what you think would be a Section 55 compliant way off drafting Appendix FM. I don't think there's a clear answer, and I think that the secretary state does have a problem on its hands on going back to that comment. At the start, Children can sometimes surprise one. Thanks for listening. See you next time