Merry Christmas Everyone and have a well deserved break.!! See: Unqualified Duty in JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC) I turn to consider the applicable legal framework. (6) In the context of the present appeals, this is dominated by section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) provides: “(1) The Secretary of State must make arrangements for ensuring that – (a) the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom …. [this is the umbrella, administrative duty] (2) The functions referred to in sub-section (1) are – (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an Immigration Officer … (3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of sub-section (1). The latter is the crucial, case-by-case duty to be discharged by decision makers and caseworkers. It is formulated in terms of an unqualified duty. The genesis of section 55 is found in a provision of international law, Article 3(1) of the UN Convention on the Rights of the Child (“UNCRC”, 1989): “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.” In the field of immigration, therefore, the enactment of section 55 discharges an international law obligation of the UK Government. While section 55 and Article 3(1) of the UNCRC are couched in different terms, there may not be any major difference between them in substance, as the decided cases have shown. The final striking feature of section 55 is that it operates to protect all children who are in the United Kingdom: there is no qualification such as residence or nationality. 7. Section 55 has been considered by the United Kingdom Supreme Court in two cases. These decisions demonstrate, inter alia, the interaction between section 55 and Article 8 ECHR. While these provisions have separate juridical identities, they are clearly associated. Thus where the Article 8 family life equation involves children, section 55 is immediately engaged. In ZH (Tanzania) [2011] UKSC4, Baroness Hale emphasised that the best interests of the child must be considered first – see paragraph [26] – while Lord Kerr stated: “[46] …….. A primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.” [Emphasis added] As was recognised in Mansoor v Secretary of State for the Home Department [2011] EWHC 832 (Admin), the onward march of the Strasbourg jurisprudence has involved the progressive development of the best interests of the child principle under Article 8.
Posted on: Tue, 23 Dec 2014 14:47:42 +0000
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