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Best Interests of Children in EV (Philippines)

The case of EV was an appeal from the Upper Tribunal to the Court of Appeal, heard before Lord Justice Jackson, Lord Justice Lewison and Lord Justice Christopher Clarke on 26 June 2014.

The case involved a Philippine national (‘EV’) who entered the United Kingdom as a work permit holder on 12 June 2007. Her husband soon followed as her dependent on 25 April 2008 as well as their three dependent children on 17 July 2009. Prior to the expiry of her leave, EV applied for Indefinite Leave to Remain. This application was rejected by the Secretary of State as being procedurally invalid on the basis that the incorrect form was utilised. It later transpires that this was not the case but in any event EV did not meet the requirements of the Immigration Rules for Indefinite Leave to Remain as she was working in a position that was not sufficiently skilled nor was she correctly paid by her employer. Removal decisions were subsequently made by the Secretary of State, generating an in-country right of appeal. EV appealed and the appeal was dismissed on the basis that removal of EV and her dependents would be proportionate.

It was accepted by the First-tier Tribunal that EV had been “defrauded by the care home owner by being underpaid” [54] but EV had failed to notify the Secretary of State of this fact. The FTT Judge accepted that the Appellants had established a private life in the UK and that removal would result in an interference with that right. It was also held that removal would be in accordance with immigration law and would be necessary when considering the economic well-being of the country. It was therefore a question of proportionality as to whether the family should be removed from the United Kingdom or allowed to remain.

 Proportionality

The FTT Judge first considered the employment and housing of the family and concluded that it was reasonable to expect EV to obtain employment in the Philippines (utilising the skills which she had already developed). Furthermore EV’s husband had extended family in the Philippines that could provide support to the family upon their return. The FTT Judge then moved on to consider the three children and their educational needs. He first held that it would be in the children’s best interests to remain with their parents but also accepted that it was in the best interests of the children that their education in the UK should not be disrupted. Regardless, the FTT Judge held that the removal of the Appellants, and the interference that would cause with their Article 8 rights, was proportionate to the legitimate aim sought by the Secretary of State. EV appealed to the Court of Appeal.

This case naturally involves section 55 of the Borders, Citizenship and Immigration Act 2009 which requires the Secretary of State to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom whilst discharging her duties or functions. (It is interesting to note that the new Immigration Act 2014 contains a further section which makes clear that section 55 of the 2009 Act remains intact and is not limited in any way by the 2014 Act).

Citing VW (Uganda) V SSHD [2009] EWCA Civ 5, ZH Tanzania (FC) v SSHD [2100] UKSC 4 and MK India (Best Interests of the child) [2011] UKUT 00475 (IAC) Lord Justice Christopher Clarke identified the importance of considering the best interest of children. In summary, it is for the Tribunal to determine what is in the best interests of the children (in this instance, it was to remain with their parents and continue their education in the UK) and then assess whether there are any considerations which outweigh that primary consideration (in this instance it was the need to maintain immigration control). In carrying out this assessment, the FTT Judge took into account the following facts:

        A.    that the parents would be employable in the Philippines;

B.    that the family would not be homeless;

C.   that there was an extended family to which they would have access;

D.   that the family had only been in the UK for a limited time - 3 years and 9 months at the date of the FTT

E.    the children would not be without education in the Philippines (the fact that secondary education is not free or as good as the education in the UK is not determinative);

F.    Finally there was no interference with the family life as removal would be as a family unit.

The Court of Appeal therefore held that there had been no error in the decision of the FTT Judge as he had conducted a proper assessment of the Appellants’ circumstances and had correctly considered what factors, if any, outweigh the best interests of the children. Lord Justice Lewison added a further observation to the leading judgment of Lord Justice Christopher Clarke by stating that an assessment of a child’s best interest should be conducted against the ‘real world facts’. Therefore, in a case such as the one that was before the Court of Appeal, the true question is whether it is reasonable to expect a child to follow the parent, who has no right to remain, to the country of origin? A distinction was highlighted by Lord Justice Lewison for cases that involve children who are British. Perhaps the most telling aspect of this decision can be found at paragraph 60 where the court state that “although it is, of course, a question of fact for the tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world.”

It would appear that in assessing the ‘best interest of the child’ the courts are increasingly likely to accord significant weight to public interest factors. The reality is that there will be a large number of cases where parents (without leave to remain) will effectively be ‘piggy-backing’ on the interests of their child in order to regularise their stay. Based on the comments made by the Court of Appeal in the case of EV it would appear that there would need to be significant factors in support of the children remaining in the UK, with their parents, and not returning to their country of origin as a family unit. The best interests of the child can no longer be treated as a ‘trump card’ (and many would argue that it never was).

If you have any questions regarding your immigration status or a human rights based application then do not hesitate to contact one of our specialist immigration lawyers on 0207 480 5999 or via email on info@webbimmigration.com.

 

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