Best Interests of the Child and the EU Charter of Fundamental Rights

The case ofAbdul (section 55 – Article 24(3) Charter : Nigeria) [2016] UKUT 106 (IAC) was heard before the Upper Tribunal President The Hon. Mr Justice McCloskey & promulgated in January this year . It appears to stand somewhat surprisingly, un-appealed by the Secretary of State.

The case involved fairly complex issues under the EEA Regulations and the right to reside in the UK relying on the best interests of the child againstproposed deportation for criminal offences on public policy grounds.

The court concluded that " Article 24(3) was designed to create a discrete right, an analysis which is harmonious with general principles of EU law . These include the well known principle that every part of a measure of EU law is presumed to have a separate and individual effect and impact. Article 24(3) may also be viewed through the prism of the principle that where one has an amalgam of specific and general provisions, the former should normally be considered in advance of the latter. This construction is further fortified by the Commentary of the Charter of Fundamental Rights of the European Union (published by the EU Network of Independent Experts on Fundamental Rights), at p207: ..... Children are no longer considered as mere recipients of services or beneficiaries of protective measures but rather as rights holders and participants in actions affecting them." [30]

The headnote states that

(i)There is no hierarchy of weight or importance in the various considerations recited in regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor will vary according to the fact sensitive context of the individual case.

(ii)           Where it is contended that the decision maker and/or the First-tier Tribunal (FTT) has acted in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009, the Upper Tribunal will scrutinise the degree of engagement with all material evidence and, in particular, will search for clear findings in the decision of the FTT of what the best interests of any affected child are.

(iii)         Article 24(3) of the EU Charter of Fundamental Rights creates a free standing right (although not absolute).