Susan Chan in Supreme Court Case on Art 8 ECHR and Children's Best Interests
Posted: 13th December 2010
Susan Chan represented the Secretary of State for the Home Department in ZH (Tanzania) v SSHD (UKSC 2010/0002), heard by the Supreme Court on 9-10 November 2010. She was led by Monica Carrs-Frisk QC (of Blackstone Chambers). Judgment is awaited.
The principal issues were:
(1) Whether the British citizenship of children to a mother who is being removed, is a special or decisive factor under Article 8 ECHR. It was agreed that the children would be likely to accompany their mother to Tanzania.
(2) Whether the fact that the father of the children, who is separated from their mother, would have limited contact with his children once they went abroad, meant that his Article 8 rights should prevail over the Secretary of State’s interest in removal.
The children were added as an intervening party shortly before the Supreme Court hearing, although they had not been separately represented in the hearings below. Although the Tribunal had found that the mother’s removal would be proportionate, which was upheld by the Court of Appeal, the Secretary of State accepted prior to the Supreme Court hearing, that it would be disproportionate under article 8 ECHR to remove the mother. Nevertheless, the parties asked the Supreme Court to give guidance on the significance of the children holding citizenship and in relation to whether the “best interests of the child” should prevail in the immigration context. The Court considered section 55 of the Borders, Citizenship and Immigration Act 2009, the United Nations Convention on the Rights of the Child, the European Union Charter of Fundamental Rights and case-law from the UK, European Court of Justice and European Court of Human Rights.
