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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 um Anwar and I'm a barrister based at 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 and public law matters. Lady Hale, in the famous case of Zh Tanzania stated at 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 of 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 of the protection of child rights in the immigration context. In the UK, the second part will discuss the case of Hesham Ali, that's a relatively recent UK Supreme Court decision in the context of deportation. And finally, the 3rd part of 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. Of 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 UN convention contains several articles that are particularly apposite in the context of immigration litigation in the UK. The first is article three Subsection one, and that is the statement that the best interests of the child must be a primary consideration in all actions affecting them. We'll come back to how that's been enacted domestically in a moment, but also of relevance is article 12, a little mentioned article in the context of immigration, but 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 of 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 tier or even the upper tribunal which really went with this notion of child's voice and gave effect to what the child's views were. It's something that I think has been underplayed, and perhaps even under emphasised by claimant practitioners to some extent, and we don't see it really reflected in a strong way in the case law. We have then, at the regional level, moving down from the international level, the european Convention on Human rights, of course, and Article eight of that convention to do with the rights to private and family life, which you'll all be familiar with, hopefully, but also at the regional level, we have the rather less mentioned and rather less litigated charter of fundamental rights of the european union. Now, the charter contains at least one provision that is relevant in the context of child's rights. If you go to article 24, 3 you'll see there that there is a right to to personal relationship and direct contact with both parents unless that is contrary to the child's interests. And that's particularly relevant in my view, where you have EU 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 of rights under the Citizens Directive at EU law, moving to the domestic fear that smith fear, then we've got the Borders Citizenship and Immigration Act 2009. Section 55 of the b. 2009, of course, contains the domestic Enactment of that International U. N. Convention on the Rights of the Child provisions to do with the best interests of the child. And essentially, section 50 five requires the immigration authorities in the UK to have regard to safeguarding and promoting the welfare of 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 an age assessment litigation where a local authority is also joined as a defendant or co defendant with the Secretary of State, then the section 10 Duty in the Children Act 2004 may well apply and that section section 10 effectively mirrors Section 55 and requires the local authority to have regard to safeguarding and promoting the interests of the child and their welfare. Also relevant in the background of this mix of law is the policy dated 2003 Across governmental policy introduced by the Labour government, I think is a green paper back way Back in 2003 and that policy document was entitled Every Child Matters. That contains a rather detailed overview, guidelines emphasizing principles such as the need to take decisions in cases that affect Children promptly and 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 of the different way in which Article eight issues are approached in the context of criminal and non criminal questions, my view is that the current framework of 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 balancing act is carried out under Article Eight. Moving now into the second part of the discussion, I'm going to talk to you a bit about the case of 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 context. So we're considering the deportation of foreign criminals and it's those foreign criminals who raise the issue of their Protected right 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 of deporting somebody who's Article eight rights are going to be infringed. That assessment is not conducted entirely within the framework of 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 we? But the fact is that in the vast majority of deportation appeals, the father is the person who's on the receiving end of the deportation order and Most often, where Article eight is 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, and in a rather lengthy decision, arrived at the conclusion 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 of the deportee, the person being deported, and, on the other hand, the interests of 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 of 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, Supreme Court also went on to find that the public interest in favor of 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, at paragraph 84 in the judgment, 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 appellant and the other column showing the public interest in favor of 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 of 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 one 47 in Lord Curves dissenting judgment, he states there, and I quote, family life is not to be defined by the application of a series of rules, disturbance of that precious aspect of existence is not avoided by a limited set of exemptions. So here's Lord Kerr essentially taking aim at the very idea behind the immigration rules on deportation, because the idea is to provide a refined and very narrow series 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, you can't squeeze in family life into these rigid exceptions, there has to be some residual leeway for a decision maker Outside of the rules. Hence coming back to this essential point in Hesham Ali. That the rules don't totally govern the exercise of assessing proportionality under Article eight. To moving on the next paragraph of Hesham Ali 1 48. Lord Kerr also writes the rules, do not permit consideration of the best interests of 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 of the Secretary of State under the Human Rights Act, but also Under Section 55 of the Borders Citizens & Immigration Act 2009. And that is a central question which arose in mm Lebanon, which will come to very shortly. And Lord co developed these uh lines of criticism towards the Human rights and Section 55. Compliance within the rules. Also at paragraphs 158156 also one 6 2 and 169. And those should be listed in the handout. And so whilst Lord Kerr was on this occasion in Hashem 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 and 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 of deportation to another, non criminal context of a appendix F. M. 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. I'm going to talk to you about the third part of this webinar and it's to do with the case of M. M. Lebanon 2017 U KFC 10. This is a rather widely publicized case in which the claimants challenged the legality of what was called the minimum income requirements in appendix F. M. Of the immigration rules. Now, for those of you unfamiliar with this part of the rules, essentially the minimum income requirements or ours set a threshold of income for non european national spouses who are trying to get a visa to come into the UK. And that minimum income threshold was set at an is set at 18,600 gross for annual income Plus an additional £3,800 for the first child if there is a child in the relationship and 2000 £400 for each additional child beyond child. # one. Alternatively, you can satisfy the MY OURS by having savings of 16,000 pounds plus 2.5 times the shortfall in the sponsor, the person who's based in the UK in the sponsor's income If they cannot meet the 18,600 threshold. So these are relatively demanding rules for the majority of applicants. So what happened to this big legal challenge? Well, on the central point, which was to challenge the legality of the mirrors. The Supreme Court rejected that they found that the missiles were in fact lawful, but they were troubled, however, by the evidence that they saw, which included evidence Of some 15,000 Children being adversely affected and separated from their families by these rules. This was quite disturbing for the UK Supreme Courts and particularly because of the fact that it impacted heavily on minors. And you can see that Really in the judgment at paragraph number 80. The court also concluded that alternative sources of income, such as the future income that the non EU national partner might be able to earn, and also possible sources of funding from relatives, friends or 3rd parties as they're known, uh ought to be considered. Uh huh. 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 mirrors. And the court concluded that these alternative sources 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. And they ordered at paragraph 100 that the guidance issued to caseworkers by the Secretary of State needed to be amended accordingly. So so far, uh one each for the claimant and the defendant. But on the 3rd point, the court also made a distinction between those parts of the rules that embodied public interest considerations, and those parts of the rules are the more practical in nature. And what the court said 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 of the Secretary of State. And this is an interesting point, which hasn't really been developed much further since this judgment. And that's this. Throughout the immigration Rules, there are only a relatively limited number of areas that could be said to embody public interest considerations. In fact, probably the clearest of 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 and other litigation that in fact, this judgment suggests that judges ought to be making their own minds up and ought not to be deferring unnecessarily to the Secretary of State's judgment on whether someone is within or outside of the rules, it has to be an independent assessment by the judge. Then there was some discussion of the extent to which the rules independence FM. And in particular, the my ours give effect to and respect the duty on the Secretary of State to promote and safeguard the welfare of 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 F. M. And right at the outset of appendix F M. G E. N 0.1 point one, that's really the first general section of appendix F. M. There's a reference there, rather offhand reference to the best interests of the child and duty to safeguard Children's interests. The Supreme Court was not taken by this. It wasn't impressed at 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 of the Supreme Court was that the I. R. S. And 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 mirrors 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 impose these rigid narrow uh 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 to have failed to actually treat the best interests of the child as primary considerations. And in finding so, the Supreme Court uh cited the judgment of the european Court of Human rights in the case of venice and the Netherlands 2015 number 60 E h r R 17 at paragraph 91 of the Grand Chamber's judgment, and it's worth just having a look at that Paragraph 109, obviousness, 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 of any removal of a non national parent in order to give effective protection and sufficient weight to the best interests of the Children. What's interesting about the Grand Chamber's decision is that it seems to introduce a rather new texture to the language of 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 of assessment that the decision maker must go through. Many of immigration solicitors and practitioners will have seen decision letters which pay scant regard To the 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 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 in a way that gives effect to these protections. And so the conclusion in mm Lebanon and what was surprisingly upbeat for the claimants because both the rules and the policy guidance were found to be unlawful because they failed to take a clear account of the Children Duty on the Secretary of State. The rules didn't reflect that the duty had been 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 of State has failed to take into consideration section 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 failed 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 of better reflecting The 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 impact quite heavily or disproportionately on Children through perhaps entry clearance guidance or Naturalization guidance or also other parts of applications to settle other parts of 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 and some of the recent cases that have cropped up off the back of or in the aftermath of these quite important cases, but it's worth pondering What you think would be a section 55 a compliant way of drafting appendix. FMI don't think there's a clear answer and I think that the secretary of state does have a problem on its hands and going back to that comment at the start, Children can sometimes surprise one. Thanks for listening. See you next time.