Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 - a case summary

Immigration has recently been a hot topic in the UK Supreme Court, with two decisions being handed down within a week of each other – first Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 (20 November 2013), quickly followed by Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 (27 November 2013).

The case of Zoumbas raises a number of important points in relation to the best interests of children and how the Home Office should approach applications concerning children.

The Appellant, Mr Zoumbas, was from the Republic of Congo and made an application to the Home Office for asylum or humanitarian protection and subsequently made further representations asserting a change of circumstances on the basis of his and his family's established private and family life in the UK. His application was refused and Mr Zoumbas applied for Judicial Review.

In their decision, their Lordships helpfully provided a summary of the law relating to the best interests of children in cases engaging article 8 of the European Convention on Human Rights ('ECHR'), summarising the principles which were previously contained within three separate Supreme Court decisions ZH (Tanzania), H v Lord Advocate and H(H) v Deputy Prosecutor of the Italian Republic.
At paragraph 10 they set out seven principles:

(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;

(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;

(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;

(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;

(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and

(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.

This is intended to paraphrase the current law and not make a change to it.

Bearing these principles in mind, their Lordships' conclusion about the approach taken with Mr Zoumbas' case in paragraph 25 appears to be inconsistent, in stating "It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance." On careful reading it seems that this comment was made within the context of their earlier conclusions that there had been both a misunderstanding of the approach taken by immigration officers and a misreading of the refusal letter.

At paragraph 19 the court held that although the well-being of the children was a primary consideration, this did not require the Secretary of State to consider the children's best interests first and then to address other considerations which might outweigh those interests. This was, in essence, an attempt to clarify that consideration of the best interests of the children is part of the assessment of proportionality and not a separate exercise which must be completed in isolation first.

In Mr Zoumbas' refusal letter the conclusion on proportionality had been given first and then an explanation, mentioning the best interests of the children, given below. The Court seems to be suggesting that there is nothing wrong with the immigration officer setting out their conclusions in this way, providing the best interests of the children have been properly considered and given due weight. The consideration of the children's best interests remains a primary consideration in the proportionality exercise, though a refusal letter does not need to deal with it first.

This case, then, is not one which substantially changes the law in relation to the best interests of children. Mr Zoumbas, with his three children based in the UK, lost his case, but a close look at the facts sheds some light on why. The children were not British citizens, and had no status in the UK. At aged just a few months, four and seven they had not spent enough time in the UK to establish their own ties and connections, independent of their parents. The seven year old had spent almost a year out of the country after being removed in 2005.

There were also some specific factual findings about the immigration history of the parents, which at various points in the judgment is described as 'poor', 'appalling' and 'unedifying'. Their history included multiple illegal entries, despite Mrs Zoumbas being detained and removed; forged documents; claiming state benefits despite being in funds from other unidentified sources; absconding; deception; and, false asylum claims.

While not changing the law on cases involving children, this Supreme Court decision may have the effect of limiting the number of cases which are taken to appeal. In giving clarification that the Secretary of State's current approach to writing refusal letters is legitimate, even if the content is not as expressed in ZH (Tanzania), the Court has probably made it more difficult to appeal on the basis of insufficient weight being given to the interests of children in article 8 cases.

Lord Hodge, though, in the final paragraphs of the Judgment, does indicate that should the Secretary of State wish to avoid appeals of this nature, refusal letters should be set out in accordance with the test given in the case of ZH (Tanzania).