Section 55 Best Interests of the Child: A Practical Guide for UK Immigration Cases
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Families with children are entitled to have immigration decisions made with the child’s best interests as a primary consideration. That principle comes from international law and, while the UN Convention on the Rights of the Child is not directly incorporated into domestic law, it is embedded in UK statute, Home Office policy and binding case law. In practice, it means the Home Office (and the courts) must be properly informed about a child’s circumstances, weigh the child’s welfare at the outset of the decision, and explain how it has been taken into account. If they fail to do so, the decision may be unlawful.
What does the UN Convention say?
The UN Convention on the Rights of the Child (UNCRC) defines a “child” as anyone under 18 (unless under the law applicable to the child, majority is attained earlier), and requires that, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
What does the UK Legislation say?
Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes a mandatory duty on public authorities, including the Home Office, to safeguard and promote the welfare of children in the UK when exercising immigration, asylum or nationality functions. If the Home Office fails to consider the child’s best interests in their decisions, the decision risks being unlawful.
Section 117B(6) of the Nationality Immigration and Asylum Act 2002 sets out the “Qualifying Child” test. For applicants who are not liable to deportation, the law has set a clear rule: the public interest does not require removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect that child to leave the UK. A “qualifying child” is a child under 18 who is British or has lived in the UK for seven years or more. In deciding reasonableness, the focus is squarely on the child’s circumstances and best interests; parental immigration history is not determinative of what is reasonable for the child. In practice, where the relationship and seven-year/British status are established and it is not reasonable for the child to depart, removal will ordinarily be disproportionate and leave should be granted on Article 8 grounds, whether under Appendix FM/Private Life or, where necessary, outside the Rules.
What is the Relevant Case Law?
The Supreme Court’s decision in Zoumbas [2013] UKSC 74 confirmed seven principles to be borne in mind when considering the interests of the child in the context of an Article 8 evaluation:
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.
How is a Best-Interests Argument raised in Immigration Applications?
Best-interests analysis should be front-and-centre wherever a child in the UK is affected, commonly in Appendix FM (partner/parent routes), Appendix Private Life, protection claims and related article 8 appeals. The Home Office (and tribunals) will expect a particularised account: who the child is, what their history in the UK is, their education, health, support networks, their emotional and developmental needs, the child’s own views where appropriate, and what would happen if the family had to leave or be split.
How Angelov Solicitors can help
When children are involved, the quality of the best-interests evidence often determines the outcome. We prepare detailed representations that set out the child’s circumstances, apply Section 55 and the case law framework, and explain why refusal would be contrary to the child’s best interests. Where needed, we assist with a subject access request to obtain child’s medical records, coordinate independent social worker or medical reports, and structure the application so decision-makers are properly informed and the legal test is addressed.
