Best interests of children can be outweighed by parental misconduct
In Kaur (children's best interests / public interest interface)  UKUT 14 (IAC) (10 January 2017) the Upper Tribunal has given further guidance on the assessment of children’s best interests in the context of Article 8. Specificially, the Upper Tribunal considered the scope of the principle that a child must not be blamed for matters for which he or she is not responsible, such as the poor immigration history of a parent.
The First Tier Tribunal
The decision of the First Tier Tribunal (the ‘FTT’) concerned an application made by the overstaying mother of a family unit, whose children were born in the UK and were ages five and seven at the time of the hearing. The Secretary of State refused to grant further leave to the family, a decision which the FTT upheld.
In considering the issue of proportionality, the FTT recognised the established private life in the United Kingdom of all four family members. However, in concluding that the impugned decision represented a proportionate interference with the private life protected by Article 8 ECHR, the Tribunal stated at :
"Any private life the Appellant has established in the UK should be given little weight because it was established at a time when she remained as an overstayer and the children have no rights to remain".
The Upper Tribunal
Before the UT it was argued that the FTT, in focusing on the precarious immigration status of the children, erred in law having regard to the statement of the Supreme Court in Zoumbas v SSHD  UKSC 74 that a child should not be blamed for matters for which it is not responsible, such as the conduct of a parent.
The UTT noted the importance of Zoumbas for the seven-part test as formulated by Lord Hodge:
(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.
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent
The President of the UTT took the opportunity to clarify how, and to what extent, principle 7 (which he referred to as the ‘sins of the parents’ principle) should be applied in practice. The three main factors that a court should take into account when considering how hard and fast this principle should apply were:
1. There is an “established dogma that general legal principles are not to be equated with absolute legal rules. They do not have the status of "hard-edged or bright-line rules"… and in every proportionality balancing exercise under Article 8 ECHR the context is unavoidably fact sensitive”.
2. That “the assessment of a child's best interests must focus on the child, while simultaneously evaluating the reality of the child's life situation and circumstances. Factors such as parental immigration misconduct must not intrude at this stage.”
3. However, “there is an Article 8(2) proportionality balancing exercise to be performed” and the child’s best interests are “capable of being outweighed by other public interest factors” and “parental misconduct such as illegal entry, unlawful overstaying or illegal working may legitimately enter the equation at a later stage of the overall proportionality balancing exercise as they are clearly embraced by the public interest in the maintenance of immigration control.”
The President of the UT summarised the correct approach at paragraph 19:
19. … in every case of this kind, there is an Article 8(2) proportionality balancing exercise to be performed. At the outset of the exercise, the scales are evenly balanced. The exercise is then performed by identifying all material facts and considerations and attributing appropriate and rational weight to each. The best interests of an affected child feature in the balancing exercise. It is incumbent upon the court or tribunal concerned to make an assessment of those interests. The balance must then be struck, treating the child's best interests as a primary consideration. As these do not have the status of the primary consideration they are capable of being outweighed by other public interest factors, singly or cumulatively, in any given case.
Nationality, Immigration and Asylum Act 2002
It was further noted that Zoumbas was decided pre the commencement of the Part 5A of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), and in particular section 117B(4) which states that:
“Little weight should be given to:
(a) A private life; or
(b) A relationship formed with a qualifying partner
that is established by a person at a time when the person is in the United Kingdom unlawfully."
And section 117B(5) which states that:
" Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious."
It was established that these terms were more flexible than they might seem by reference to case-law. However, it was nevertheless necessary to consider whether the Zoumbas principles still existed post the 2002 Act. This was found most definitely to be the case, due to the legal context, the decisions of the tribunal which were allowed to take other considerations into account other than purely the legislation and most importantly that in the Part 5A regime ‘there is a clearly discernible legislative intention to confer on children special levels of protection’.
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