The Evolution of the Child’s Best Interest

Section 55 of the Borders Immigration & Citizenship Act 2009 introduced a requirement that the Secretary of State consider and evaluate a child’s best interests when making immigration decisions. This principle, and the scope and application of it by the UK Border Agency and the Tribunal and superior Courts, have been the subject of wide ranging debate and litigation since it’s introduction, culminating in the landmark Supreme Court judgement of ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4. The recent Upper Tribunal determination of T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC) holds that section 55 does not apply to children who are outside of the UK. This is only the latest in a slew of determinations dealing with the complexities of this issue, an excellent case law round up of which by Free Movement can be found here.

The principle of primacy of consideration laid down by Lady Hale in ZH is becoming finely nuanced, and the determinative quality of the principle will depend on the factual matrix of each particular case. The sheer volume of judgements dealing with this issue perhaps illustrate how fact sensitive it is. However it is, and no doubt will continue to be, fascinating to see the principle and it’s development interact with Article 8 proportionality considerations, along of course with the ever changing requirements of the Immigration Rules.