JUDGMENT
Zoumbas (Appellant) v Secretary of State for the
Home Department (Respondent)
before
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Toulson
Lord Hodge
JUDGMENT GIVEN ON
27 November 2013
Heard on 28 October 2013
Appellant Respondent
Mark Lindsay QC Lorna Drummond QC
Stephen Winter Andrew Webster
(Instructed by Drummond (Instructed by Office of
Miller LLP) the Advocate General)
LORD HODGE, delivering the judgment of the court
1. This is the judgment of the court. The appellant, Mr Zoumbas, challenges a
decision by the Secretary of State for the Home Department dated 4 October 2011
that he did not qualify for asylum or humanitarian protection and that his further
representations were not a fresh human rights claim under paragraph 353 of the
Immigration Rules. He challenged the Secretary of State’s decision for the manner
in which she dealt with the best interests of his children in the light of the decision
of this court in ZH (Tanzania) v Secretary of State for the Home Department
[2011] 2 AC 166. He was unsuccessful in his judicial review application before
both the Lord Ordinary, Lady Clark of Calton, and an Extra Division of the Inner
House of the Court of Session.
2. The judicial review application and this appeal are concerned only with the
fifth of the questions which Lord Bingham of Cornhill set out in para 17 of his
speech in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC
368. That is, in this case, whether the interference with the family life of Mr
Zoumbas’ family unit by his removal to the Republic of Congo was proportionate
to the legitimate public end which the Secretary of State sought to achieve.
3. Before this court Mr Zoumbas made his challenge in three parts. First, he
submitted that the Secretary of State had erred by failing to have regard to the
interests of his children as a primary consideration in the proportionality
assessment under article 8 of the European Convention on Human Rights
(“ECHR”). This entailed, he submitted, a breach of the Secretary of State’s duty
under section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009
Act”), which required her to make arrangements for ensuring that her functions in
relation to immigration were discharged having regard to the need to safeguard and
promote the welfare of children who are in the United Kingdom. He suggested
that this amounted to punishing the children for their parents’ poor immigration
history. Secondly, he criticised the Secretary of State’s findings in relation to the
best interests of the children. He asserted that (i) she had failed to make clear
findings, (ii) it was irrational to conclude that the children’s best interests would be
served by their removal to the Republic of Congo, (iii) she had failed to carry out a
careful examination of their best interests, and (iv) the findings assumed that he
and his wife would be returned to the Congo. Thirdly, in a submission which
depended on the success of either or both of the first and second submissions, he
argued that the Secretary of State had erred in concluding under paragraph 353 of
the Immigration Rules that further representations made by him did not have a
realistic prospect of success before an immigration judge.
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The facts
4. Mr Zoumbas and his wife have an unedifying immigration history. They
are citizens of the Republic of Congo. He entered the United Kingdom illegally on
27 May 2001 using a French passport that did not belong to him. He claimed
asylum and was granted temporary admission. The woman who became his wife
entered the United Kingdom on 30 July 2002 using a forged French passport. She
also claimed asylum. Their claims for asylum were refused and her appeal was
dismissed. On 7 November 2003 they married. Mrs Zoumbas initiated an appeal
under article 8 ECHR, which was refused. Mr Zoumbas’ appeal against the refusal
of his asylum claim was also refused. Their eldest child, Angemarcel Massengo
Fleury, was born on 27 April 2004.
5. On 8 April 2005 Mr Zoumbas was considered for the family indefinite
leave to remain exercise but was found not to be eligible. In October 2005 Mrs
Zoumbas and Angemarcel were detained and removed to the Republic of Congo.
That same month, Mr Zoumbas failed to report to the immigration authorities and
was treated as an absconder. For several months the authorities did not know his
whereabouts.
6. On 31 March 2006 Mrs Zoumbas and Angemarcel returned to the United
Kingdom illegally using passports and a residence permit that did not belong to
them. Mrs Zoumbas claimed asylum again and named her husband and
Angemarcel as dependents in her claim. In about August 2006 Mr Zoumbas
started to report to the immigration authorities again. On 25 May 2006 the
Secretary of State refused Mrs Zoumbas’ asylum claim. She appealed but her
appeal was dismissed on 24 July 2006. She was granted a statutory review of her
appeal but on 3 July 2007 the First-tier Tribunal refused her appeal after a
reconsideration hearing.
7. On 3 February 2007 Mrs Zoumbas gave birth to a daughter, Rosangel
Shekma Massengo Fleury, and on 14 April 2011 she gave birth to another
daughter, Shaun Keziah Massengo Fleury. Mr and Mrs Zoumbas did not have
permission to work. They received state benefits because Mr Zoumbas claimed
that he was destitute. But between September 2008 and April 2010 credits of
£27,693.75 from unidentified sources were paid into bank accounts of Mrs
Zoumbas and of the older two children.
8. On 22 June 2010 Mr Zoumbas submitted further representations in which
he asserted that there had been a change of circumstances because he, his wife and
his children had been in the United Kingdom for several years and had established
a family and private life which should be respected under article 8 ECHR.
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Documents which accompanied his representations showed that the eldest child,
Angemarcel, was at primary school, that Mrs Zoumbas was attending college, and
that they were members of a church, all in Glasgow.
9. By letter dated 4 October 2011 the Secretary of State intimated to Mr
Zoumbas her decision that his representations did not qualify him for asylum or
humanitarian protection and that he did not merit a grant of limited leave to enter
or remain in the United Kingdom. She also held that his submissions would not
amount to a fresh claim under paragraph 353 of the Immigration Rules because
they did not create a realistic prospect of success before an immigration judge. Mr
Zoumbas has challenged that decision in his application for judicial review.
The legal framework
10. In their written case counsel for Mr Zoumbas set out legal principles which
were relevant in this case and which they derived from three decisions of this
court, namely ZH (Tanzania) (above), H v Lord Advocate 2012 SC (UKSC) 308
and H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338. Those
principles are not in doubt and Ms Drummond on behalf of the Secretary of State
did not challenge them. We paraphrase them as follows:
(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;
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(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.
11. These principles arise from the United Kingdom’s international obligations
under the United Nations Convention on the Rights of the Child, and in particular
article 3.1 which provides:
“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.”
That general principle of international law has influenced the way in which the
Strasbourg court has interpreted the ECHR: Neulinger v Switzerland (2010) 28
BHRC 706, para 131.
12. Mr Lindsay for Mr Zoumbas also founded on a statement in the judgment
of Lord Kerr of Tonaghmore in ZH (Tanzania) at para 46 in support of the
proposition that what is determined to be in a child’s best interests should
customarily dictate the outcome of cases and that it will require considerations of
substantial moment to permit a different result. In our view, it is important to note
that Lord Kerr’s formulation spoke of dictating the outcome of cases “such as the
present” and that in ZH (Tanzania) the court was dealing with children who were
British citizens. In that case the children by virtue of their nationality had
significant benefits, including a right of abode and rights to future education and
healthcare in this country, which the children in this case, as citizens of the
Republic of Congo, do not. The benefits of British citizenship are an important
factor in assessing whether it is reasonable to expect a child with such citizenship
to live in another country. Moreover in H(H) Lord Kerr explained (at para 145)
that what he was seeking to say was that no factor should be given greater weight
than the interests of a child. See the third principle above.
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13. We would seek to add to the seven principles the following comments.
First, the decision-maker is required to assess the proportionality of the
interference with private and family life in the particular circumstances in which
the decision is made. The evaluative exercise in assessing the proportionality of a
measure under article 8 ECHR excludes any “hard-edged or bright-line rule to be
applied to the generality of cases”: EB (Kosovo) v Secretary of State for the Home
Department [2009] AC 1159, per Lord Bingham at para 12. Secondly, as Lord
Mance pointed out in H(H) (at para 98) the decision-maker must evaluate the
child’s best interests and in some cases they may point only marginally in one,
rather than another, direction. Thirdly, as the case of H(H) shows in the context of
extradition, there may be circumstances in which the weight of another primary
consideration can tip the balance and make the interference proportionate even
where it has very severe consequences for children. In that case an Italian
prosecutor issued a European arrest warrant seeking the surrender of a person who
had earlier broken his bail conditions by leaving Italy and ultimately seeking safe
haven in the United Kingdom and had been convicted of very serious crimes. This
court held that the treaty obligations of the United Kingdom to extradite him
prevailed over his children’s best interests. The third principle in para 10 above is
subject to the first and second qualifications and may, depending on the
circumstances, be subject to the third. But in our view, it is not likely that a court
would reach in the context of an immigration decision what Lord Wilson described
in H(H) (at para 172) as the “firm if bleak” conclusion in that case, which
separated young children from their parents.
The decision letter
14. In the letter of 4 October 2011, Ms G Dickin, the official acting on behalf of
the Secretary of State, summarised Mr Zoumbas’ submissions and listed the
documents which he had produced in its support. She considered the first four
questions which Lord Bingham set out in R (Razgar) at para 17. She held that Mr
Zoumbas had established a private life and a family life in the United Kingdom
and that his removal would interfere with his private and family life. It was
implicit in her discussion that article 8 ECHR was engaged. She then concluded
that the interference would be in accordance with the law and in pursuit of the
legitimate aim of maintaining effective immigration control.
15. She introduced the consideration of the proportionality of the interference
with the words:
“Below is a consideration of why any interference is proportionate to
the permissible aim”.
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She then referred to the family’s unlawful residence and the fact that Mr Zoumbas
and his wife had established their family life in the full knowledge that they both
had no legal right to reside in the United Kingdom and could be removed at any
time. She summarised the “appalling immigration history” of Mr and Mrs
Zoumbas and the family’s receipt of state benefits while receiving the unidentified
credits which I have mentioned.
16. She considered in turn the proportionality of the interference with Mr
Zoumbas’ private and family life before discussing the article 8 rights of any
family members who were not party to the proceedings in accordance with the
guidance which the House of Lords gave in Beoku-Betts v Secretary of State for
the Home Department [2009] AC 115. She concluded that there was no evidence
of family ties in the United Kingdom other than Mr Zoumbas’ wife and children
who would be removed to the Congo with him, thus preserving his family life.
17. She then addressed the Secretary of State’s obligation under section 55 of
the 2009 Act to carry out her functions in a way which has regard to the need to
safeguard and promote the welfare of children in the United Kingdom. She made
it clear that the interests of the three children had been taken into account in the
assessment of the proportionality of the interference with private and family life.
She stated:
“Full consideration has been given to the best interests of your three
children, which is a primary consideration in the evaluation of the
proportionality of a decision to remove a family.
It is noted that you have not provided any information which pertains
specifically to the best interests of your three children. A new
immigration judge would conclude that although health care and
education in Congo may not be of the same standard as in the United
Kingdom, the children’s best interests will be to remain with their
parents and raised in their own culture. Furthermore, if you return
together there is no reason to believe that relocation to Congo would
have a particularly detrimental effect on your children.”
18. She concluded that the balance of the competing interests was in favour of
the family’s removal (a) because of the need to maintain effective immigration
control, (b) because they had built up a family life in the United Kingdom when
their residence was precarious, and (c) because the immigration history involved
findings of fabricated asylum claims, deception, fraud and absconding.
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Discussion of the challenges
19. We are satisfied that there is no substance in the first of Mr Zoumbas’
challenges which we have summarised in para 3 above. It rests on a mistaken
construction of the Secretary of State’s letter. There has been no failure to consider
the best interests of Mr and Mrs Zoumbas’ children in the article 8 proportionality
exercise. Mr Lindsay accepted that the status of the well-being of the children as a
primary consideration did not require the Secretary of State in every case to
consider the children’s best interests first and then to address other considerations
which might outweigh those interests. There is nothing to bar the official who acts
for the Secretary of State from considering the various issues, including the
proportionality exercise under article 8 ECHR before drafting the decision letter.
The official set out the Secretary of State’s conclusion before explaining the
reasons for that conclusion. It is important to read the decision letter as a whole
and to analyse the substance of the decision. It is a misreading of the letter to
assert, as Mr Lindsay did, that the Secretary of State had made a decision on
proportionality before addressing the well-being of the children. The consideration
of the children’s best interests was, as the letter stated (para 17 above), a primary
consideration in the proportionality exercise.
20. Mr Lindsay submitted in his written case that this appeal raised an issue of
general public importance because the structure of the decision letter was one
which the Secretary of State frequently used. Ms Drummond understandably
submitted in her written case that there was no issue of general public importance.
Be that as it may, the appeal demonstrates a misunderstanding of the effect of the
decision in ZH (Tanzania) which can usefully be corrected.
21. If officials in the Home Department who draft such decision letters are
using a template to give structure to the articulation of their decisions, we see
nothing wrong with a template that provides for the statement of the Secretary of
State’s conclusion to be followed by her reasoning. What is important, as Lord
Mance said in H(H) at para 98, is that the interests of the children must be at the
forefront of the decision-maker’s mind. In this context the fourth, fifth and sixth
principles which we have listed in para 10 above are relevant. That leads us to
consider the second of Mr Lindsay’s challenges.
22. We are not persuaded that there is any lack of clarity in the Secretary of
State’s findings on the children’s best interests or any indication that there had not
been a careful examination of those interests. The decision letter sets out the
Secretary of State’s conclusions briefly. But that does not give rise in this case to
any inference that there has not been careful consideration. The substance of Mr
Lindsay’s complaint was that the Secretary of State either had not considered or
had failed to record her findings on matters which were disclosed in the documents
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lodged in support of Mr Zoumbas’ claim. Those matters were (a) that the children
were born in the United Kingdom, (b) that they were English speakers and saw
themselves as British, (c) that they had integrated well into the community in
Glasgow, (d) that the eldest child was doing well at school, and (e) that two of the
three children had never been to the Congo.
23. In our view, the Secretary of State does not have to record and deal with
every piece of evidence in her decision letter. The decision-maker was clearly
aware that the children were born in the United Kingdom as it is recorded on the
fourth page of the decision letter. The letter also recorded that the children were
aged seven years, four years, and five months respectively and referred to the
evidence that the eldest child was at primary school. The decision-maker would
also have been aware from the narrative of the family’s immigration history that
two of the children had not been to the Republic of Congo.
24. There is no irrationality in the conclusion that it was in the children’s best
interests to go with their parents to the Republic of Congo. No doubt it would have
been possible to have stated that, other things being equal, it was in the best
interests of the children that they and their parents stayed in the United Kingdom
so that they could obtain such benefits as health care and education which the
decision-maker recognised might be of a higher standard than would be available
in the Congo. But other things were not equal. They were not British citizens.
They had no right to future education and health care in this country. They were
part of a close-knit family with highly educated parents and were of an age when
their emotional needs could only be fully met within the immediate family unit.
Such integration as had occurred into United Kingdom society would have been
predominantly in the context of that family unit. Most significantly, the decisionmaker concluded that they could be removed to the Republic of Congo in the care
of their parents without serious detriment to their well-being. We agree with Lady
Dorrian’s succinct summary of the position in para 18 of the Inner House’s
opinion.
25. Finally, we see no substance in the criticism that the assessment of the
children’s best interests was flawed because it assumed that their parents would be
removed to the Republic of Congo. It must be recalled that the decision-maker
began by stating the conclusion and then set out the reasoning. It was legitimate
for the decision-maker to ask herself first whether it would have been
proportionate to remove the parents if they had no children and then, in
considering the best interests of the children in the proportionality exercise, ask
whether their well-being altered that provisional balance. When one has regard to
the age of the children, the nature and extent of their integration into United
Kingdom society, the close family unit in which they lived and their Congolese
citizenship, the matters on which Mr Lindsay relied did not create such a strong
case for the children that their interest in remaining in the United Kingdom could
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have outweighed the considerations on which the decision-maker relied in striking
the balance in the proportionality exercise (paras 17 and 18 above). The
assessment of the children’s best interests must be read in the context of the
decision letter as a whole.
26. As we have not upheld either of the first or second challenges, the third
challenge cannot succeed.
27. We therefore dismiss the appeal.
28. It is of course the task of the Secretary of State and not this court to decide
the content of any template for decision letters. But we venture the view that
challenges, such as this one, would be less likely if her advisers were to express
the test in the way in which it was expressed in ZH (Tanzania) and to expand the
explanation of the separate consideration that was given to the interests of the
children.
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