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THE BEST INTERESTS OF THE CHILD PRINCIPLE AS AN INDEPENDENT SOURCE OF INTERNATIONAL PROTECTION

Published online by Cambridge University Press:  16 March 2015

Jason M Pobjoy
Jason M Pobjoy*
Affiliation:
Barrister, Blackstone Chambers; PhD candidate, Gonville and Caius College, University of Cambridge, [email protected].
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Abstract

The Convention on the Rights of the Child, and the best interests principle codified in Article 3 in particular, is playing an increasingly significant role in decisions involving the admission or removal of a child from a host State. This article examines the extent to which the best interest principle may provide an independent source of international protection. That protection may, for instance, proscribe the removal of a child from a host State notwithstanding that the child is ineligible for protection as a refugee or protection under the more traditional non-refoulement obligations in international human rights law.

Keywords

best interestschildrencomplementary protectionConvention on the Rights of the Childhuman rightsRefugee Conventionrefugee law
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 2 , April 2015 , pp. 327 - 363
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

2 Goodwin-Gill, GS, ‘Who to Protect, How … and the Future?’ (1997) 9 IJRL 1, 7Google Scholar.

3 Article 3 provides: ‘(1) 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; (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures; (3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.’

4 GS Goodwin-Gill and A Hurwitz, ‘Memorandum’ reprinted in Minutes of Evidence Taken before the European Union Committee (Sub-Committee E) (10 April 2002) in House of Lords Select Committee on the European Union, ‘Defining Refugee Status and Those in Need of International Protection’, House of Lords Paper No 156, Session 2001–02 (2002) Appendix 2, [10].

5 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) and the attendant Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (hereafter referred to individually as the ‘1951 Convention’ and the ‘1967 Protocol’ and collectively as the ‘Refugee Convention’).

6 McAdam, J, Complementary Protection in International Refugee Law (Oxford University Press 2006) 173–4Google Scholar. See also McAdam, J, ‘Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection’ (2006) 14 International Journal of Children's Rights 251Google Scholar. For further endorsement see Pobjoy, J, ‘A Child Rights Framework for Assessing the Status of Refugee Children’ in Juss, S and Harvey, C (eds), Contemporary Issues in Refugee Law (Edward Elgar Publishing 2013) 91Google Scholar; Bolton, S, ‘Promoting the Best Interests of the Child in UK Asylum Law and Procedures’ (2012) 26(3) Journal of Immigration, Asylum and Nationality Law 232Google Scholar; Bolton, S, ‘“Best Interests”: Safeguarding and Promoting the Welfare of Children in Immigration Law and Practice’ in Immigration Law Practitioners' Association, Working with Refugee Children: Current Issues in Best Practice (Immigration Law Practitioners' Association 2012) 1Google Scholar; N Dicker and J Mansfield, ‘Filling the Protection Gap: Current Trends in Complementary Protection in Canada, Mexico and Australia’ (New Issues in Refugee Research: Research Paper No 238, UNHCR, May 2012) 19–22; Lundberg, A, ‘The Best Interests of the Child Principle in Swedish Asylum Cases: The Marginalization of Children's Rights’ (2011) 3(1) Journal of Human Rights Practice 49Google Scholar; Carr, B, ‘Incorporating a “Best Interests of the Child” Approach into Immigration Law and Procedure’ (2009) 12 Yale Human Rights and Development Law Journal 120Google Scholar; Dalrymple, JK, ‘Seeking Asylum Alone: Using the Best Interests of the Child Principle to Protect Unaccompanied Minors’ (2006) 26 Boston College Third World Law Journal 131Google Scholar.

7 This includes both the express norm of non-refoulement under art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), and the implicit norm contained within arts 6–7 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) and arts 6 and 37 of the CRC. At the European level, it also includes art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘European Convention on Human Rights’).

8 The term ‘complementary protection’ is generally used to refer to international protection for persons falling outside the scope of the protection provided under the Refugee Convention but who otherwise have a claim for protection based on obligations under international human rights law. The term is arguably inappropriate in the context of art 3 of the CRC. There is a compelling argument, given the scope and legal standing of the best interests principle, that, where a State is party to both the CRC and the Refugee Convention, art 3 should provide the principal basis for international protection in claims involving children, and should therefore not be understood as providing protection that is complementary to the Refugee Convention: see eg Goodwin-Gill, G S, ‘The United Nations Convention on the Rights of the Child and its Application to Child Refugee Status Determination and Asylum Processes: Introduction’ (2012) 26(3) Journal of Immigration Asylum and Nationality Law 226Google Scholar, 228–9. For this reason, the term ‘independent protection’ has been adopted in this article.

9 As at January 2015 there are 148 parties to either the 1951 Convention or the 1967 Protocol, as against 194 parties to the CRC. The US and Somalia are the only two States that have failed to ratify the CRC.

10 Refugee Convention art 1(A)(2).

11 Refugee Convention arts 1(C)–1(F).

12 The Committee on the Rights of the Child (‘UNCRC’) has emphasized the need to consider complementary forms of protection in claims involving children. In UNCRC, General Comment No 6: Treatment of Unaccompanied and Separated Children outside Their Country of Origin, 39th sess, UN Doc CRC/GC/2005/6 (2005) (‘General Comment No 6’) [77], the Committee stated that in cases where ‘the requirements for granting refugee status under the 1951 Refugee Convention are not met, unaccompanied and separated children shall benefit from available forms of complementary protection to the extent determined by their protection needs’. See also General Comment No 6, [66].

13 See Hathaway, JC, North, AM and Pobjoy, J, ‘Supervising the Refugee Convention: Introduction’ (2013) 26 Journal of Refugee Studies 323Google Scholar.

14 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, GA Res 66/138, UN GAOR, 66th sess, 89th plen mtg, UN Doc A/RES/66/138 (2011), adopted 19 December 2011 and opened for signature 28 February 2012 (entered into force 14 April 2014).

15 CRC art 3(1). The ‘best interests’ language appears on several occasions in the CRC (arts 9, 18, 20, 21, 37, 40), though art 3 is the core provision. That provision is based on principle 2 of the Declaration of the Rights of the Child, GA Res 1386 (XIV). It is also reflected in the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (arts 5(b) and 16(1)(d)), the African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.9/49 (entered into force 29 November 1999) (art IV), and the Charter of Fundamental Rights of the European Union [2000] OJ C 364/1 (art 24(2)).

16 CRC art 3(1).

17 UNCRC, General Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child (arts 4, 42 and 44(6)), 34th sess, UN Doc CRC/GC/2003/5 (2003) [12]. In the context of administrative authorities, the UNCRC has emphasized that the scope of art 3(1) is very broad, ‘covering decisions concerning … protection, asylum, [and] immigration’: UNCRC, General Comment No 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (art 3, para 1), 62nd sess, UN Doc CRC/C/GC/14 (2013) (‘General Comment No 14’) [30].

18 ibid [6]. In addition, the Committee noted that art 3 incorporates a rule of procedure, designed to ensure that any decision-making process that involves a child incorporates an evaluation of the possible impact that that decision may have on the child. It is not clear, however, how this third concept differs from the operation of art 3 as a substantive right.

19 ibid.

20 ibid. The suggestion that art 3(1) is ‘self-executing’ is problematic, given that the question as to whether a treaty or a treaty provision is ‘self-executing’ is determined by the municipal system in question, not ex cathedra by a treaty-supervising body.

21 ibid.

22 CRC art 2(1).

23 See eg UNHCR, UNHCR Guidelines on Determining the Best Interests of the Child (2008). At a domestic level, see eg Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues (30 September 1996) 2 (‘[i]n determining the procedure to be followed when considering the refugee claim of a child, the CRDD should give primary consideration to the “best interests of the child”’); Memorandum from Jeff Weiss, Acting Director, Office of International Affairs, United States Department of Justice Immigration and Naturalization Service, ‘Guidelines for Children's Asylum Claims’ (File No 120/11.26, 10 December 1998) 3 (‘INS Guidelines’).

24 UNCRC, ‘2012 Day of Discussion: The Rights of All Children in the Context of International Migration: Background Paper’ (August 2012) 20.

25 CRC art 3(1) (emphasis added).

26 General Comment No 6 (n 12) [19]. As recent guidelines published by the UK Home Office have acknowledged, the best interests principle requires ‘a continuous assessment that starts from the moment the child is encountered and continues until such time as a durable solution has been reached’: UK Border Agency (‘UKBA’), Asylum Process Guidance: Processing an Asylum Application from a Child (ver 5, 11 August 2010) [1.3] (‘Asylum Process Guidance’). In the UK this is now reflected in section 55 of the Borders, Citizenship and Immigration Act 2009 (UK).

27 ‘The best interests principle is … relevant to such substantive questions as defining the behavior that counts as persecution of a child, the circumstances that give rise to a well-founded fear in a child, and the threshold that a child must meet to discharge their burden of proof … [The] principle operates as an interpretative aid, broadening and deepening the scope of protection, both in terms of substantive law and procedural mechanisms’: Bhabha, J and Young, W, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11(1) IJRL 84Google Scholar, 97–8.

28 General Comment No 14 (n 17) [6].

29 INS Guidelines (n 23) 18 (although this must be read taking into account the fact that the US has not ratified the CRC) (‘While the Authority is conscious of article 3(1) of the [CRC] … the requirement to consider the best interests of the child, whom it is accepted is more vulnerable than an adult, cannot somehow elevate the child … to refugee status where there is no real chance of that child … suffering persecution if returned to their country of origin. Whether or not these people are refugees depends on the application of the definition of refugee in the Refugee Convention to each of them and not on the application of article 3(1) of the [CRC]’); Refugee Appeal No 70695/97 (Refugee Status Appeals Authority, New Zealand, 30 April 1998) 23.

30 Contra INS Guidelines (n 23) 3, which provides that the best interests principle ‘does not play a role in determining substantive eligibility under the … refugee definition’. Bhabha and Young have identified that this statement was a last-minute addition, with an earlier version of the guidelines emphasizing that ‘[t]he need for sensitive treatment of child asylum-seekers extends not only to interviewing techniques but also to the legal analysis of the child's claims’: Bhabha and Young (n 27) 97 (emphasis added). Contra also the position taken by the Federal Court of Canada in Kim v Canada [2011] 2 FC 448, 454 [6]: ‘It is clear that the best interests of the child cannot substantively influence the answer with regard to whether a child is a refugee, but the best interests of the child are central to the procedure by which to reach a decision.’ For a more principled treatment of the best interests principle by the Federal Court of Canada, see Patel v Canada (Minister of Citizenship and Immigration) [2005] FCJ No 1305, [61]–[63]. See also the approach taken in the recent guidance issued by the UKBA: Asylum Process Guidance (n 26) [1.3].

31 The author thanks James Hathaway for this characterization.

32 UNHCR, Guidelines on International Protection: Child Asylum Claims under art 1A(2) and 1(F) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees (2009) [10].

33 See eg RA (AP) v Secretary of State for the Home Department [2011] CSOH 68, [25]. See also para 27 of the EU Qualification Directive (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted [2011] OJ L 337/9).

34 See eg R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin); R (BT) v Secretary of State for the Home Department [2011] EWCA Civ 1446; ALJ and A, B and C's Application for Judicial Review [2013] NIQB 88. See, more generally, ‘Dublin II’ art 6 (Council Regulation (EC) No 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining and Asylum Application Lodged in One of the Member States by a Third-Country National [2003] OJ L 50/1), and the decision in R (MA) v Secretary of State for the Home Department (Court of Justice of the European Union, C-648/11, 6 June 2013).

35 See eg R (ABC) (a minor) (Afghanistan) v Secretary of State for the Home Department [2011] EWHC 2937 (Admin).

36 N Blake, ‘Current Problems in Asylum and Protection Law: The UK Judicial Perspective’ (Paper presented at Ninth World Conference of the International Association of Refugee Law Judges, Slovenia, 7 September 2011) 10.

37 Goodwin-Gill (n 2) 7; Goodwin-Gill (n 8); Goodwin-Gill, GS, ‘Unaccompanied Refugee Minors: The Role and Place of International Law in the Pursuit of Durable Solutions’ (1995) 3 International Journal of Child Rights 405Google Scholar.

38 McAdam, Complementary Protection (n 6) 173.

39 ibid 173–4.

40 General Comment No 6 (n 12) [84].

41 ibid.

42 ibid [86]; see also at [20]. See discussion on rights-based considerations at text (n 184).

43 UNCRC, Report of the 2012 Day of General Discussion: The Rights of all Children in the Context of International Migration (2013) [72].

44 ibid.

45 UNCRC, Consideration of Reports Submitted by States Parties under Article 44 of the Convention—Concluding Observations: Australia, 60th sess, UN Doc CRC/C/AUS/CO/4 (2012) [80].

46 Jorge Bustamante, Report of the Special Rapporteur on the Human Rights of Migrants, UN Doc A/64/213 (3 August 2009) [85], [97]. See also Human Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, UN Doc A/HRC/11/7 (14 May 2009) [57], [123].

47 Human Rights Council, Study of the Office of the United Nations High Commissioner for Human Rights on Challenges and Best Practices in the Implementation of the International Framework for the Protection of the Rights of the Child in the Context of Migration, UN Doc A/HRC/15/29 (5 July 2010) [46]–[47].

48 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997) [9.2].

49 Executive Committee of the High Commissioner's Programme, Report of the Fifth-Eighth Session of the Executive Committee of the High Commissioner's Programme—Note by the High Commissioner, 58th sess, UN Doc A/AC.96/1048 (2007) [14(b)(v)] (‘Conclusion on Children at Risk’).

50 ibid [14(g)]. See also Executive Committee of the High Commissioner's Programme, Report of the Fifth-Sixth Session of the Executive Committee of the High Commissioner's Programme, 56th sess, UN Doc A/AC.96/1021 (2005) [21(n)] (‘Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection’).

51 UNHCR, UNHCR Guidelines (n 23). UNHCR uses the acronym ‘BID’ to describe the formal process deigned to ascertain the child's best interests. The Guidelines are complemented by UNHCR, Field Handbook for the Implementation of UNHCR BID Guidelines (2011).

52 Borders, Citizenship and Immigration Act 2009 (UK) section 55. This duty is explicated in statutory guidance which provides that the ‘the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children’: UKBA, Every Child Matters: Statutory Guidance to the UK Border Agency on Making Arrangements to Safeguard and Promote the Welfare of Children (November 2009) [2.7].

53 For example, in In Üner v The Netherlands (2007) 45 EHRR 14, a case involving the expulsion of a father of three children following his conviction for manslaughter, the ECtHR explicitly identified ‘the best interests and well-being of the children’ as a criterion to assess whether deportation was necessary in a democratic society and proportionate to the legitimate public aim sought to be achieved (at [58]). This was subsequently elaborated on in the case of Neulinger and Shruk v Switzerland (2012) 54 EHRR 31, where the Court underlined the fact that ‘the decisive issue is whether a fair balance between the competing interests at stake—those of the child, of the two parents, and of public order—has been struck … bearing in mind, however, that the child's best interests must be the primary consideration … The child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences … For that reason, those best interests must be assessed in an individual case’ (at [134], [138]).

54 Bolton, ‘Promoting the Best Interests of the Child’ (n 6) 235.

55 [2010] UKUT 278 (IAC). Although earlier decisions in the UK acknowledged the relevance of the interests of a child when applying art 8, this was never explicitly done by reference to art 3 of the CRC. For example, in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, [12], Lord Bingham held that ‘it will rarely be proportionate to uphold an order for removal of the spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removal spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child’.

56 LD [2010] UKUT 278 (IAC), [28].

57 ibid [26].

58 ibid [29]. The following month Blake J issued his decision in R (MXL) v Secretary of State for the Home Department [2010] EWHC 2397 (Admin), which outlined a similar set of principles: ‘Once Article 8 is engaged, the exercise of judgment in a case falling within its ambit must comply with the principles identified by Strasbourg. In a case where the interests of children are affected this means that other principles of international law binding on contracting states should be complied with. In the case of children those principles are reflected in Article 3(1) of the [CRC] to which the UK is now a party without any derogation in respect of immigration decision making’ (at [83]).

59 [2011] 2 AC 166. For an excellent discussion on the decision in ZH and its background see Fortin, J, ‘Are Children's Best Interests Really Best? ZH (Tanzania) (FC) v Secretary of State for the Home Department’ (2011) 74(6) MLR 947Google Scholar.

60 ZH [2011] 2 AC 166, [13].

61 ibid [24] (Lady Hale). The Upper Tribunal has since re-emphasized that the best interests obligation is both procedural and substantive: ‘it is not helpful to attempt to analyse the duty … as being either procedural or substantive in effect. It applies to the procedures involved in the decision-making process; but it will also apply to those aspects of the substantive decision to which it is relevant’: AA (unattended children) (Afghanistan) CG [2012] UKUT 00016 (IAC), [33].

62 ZH [2011] 2 AC 166, [33].

63 ibid.

64 ibid [26].

65 For additional art 8 removal cases incorporating the best interests principle see Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC); AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191; E-A v Secretary of State for the Home Department [2011] UKUT 00315 (IAC); SA v Secretary of State for the Home Department [2011] UKUT 00254 (IAC).

66 [2013] 1 AC 338, [141].

67 ibid.

68 See eg HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338 (‘HH’); H v Lord Advocate (Scotland) [2013] 1 AC 413. In HH [2013] 1 AC 338, [148], Lord Kerr held that ‘[i]n the field of extradition, as in every other context … the importance of the rights of the particular child affected falls to be considered first. This does not impair or reduce the weight that will be accorded to the need to preserve and uphold a comprehensive charter for extradition. That will always be a factor of considerable importance, although … the weight to be attached to it will vary according to the nature and seriousness of the crime or controls involved’.

69 See eg Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690; IE v Secretary of State for the Home Department [2013] CSOH 142; JW (China) and MW (China) v SSHD [2013] EWCA Civ 1526; AAN v Secretary of State for the Home Department [2012] CSOH 141; R (Meaza Asefa) v Secretary of State for the Home Department [2012] EWHC 56 (Admin).

70 See eg Re E (children) (FC) [2012] 1 AC 144, and the decision below in Eliassen v Eliassen [2011] EWCA Civ 361.

71 See eg CW (Jamaica) v SSHD [2013] EWCA Civ 915; AJ (Bangladesh) v Secretary of State for the Home Department [2013] EWCA Civ 493; SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998; Ogundimu v Secretary of State for the Home Department [2013] UKUT 00060; Sanade v Secretary of State for the Home Department [2012] UKUT 00048 (IAC); Lee v Secretary of State for the Home Department [2011] EWCA Civ 348; Omotunde v Secretary of State for the Home Department [2011] UKUT 00247 (IAC); T v Secretary of State for the Home Department (Special Immigration Appeals Commission, Appeal No SC/31/2005, 22 March 2010).

72 See eg R (AA) v Upper Tribunal and Secretary of State for the Home Department [2012] EWHC 1784 (Admin); FM (Afghanistan) v Secretary of State for the Home Department (Upper Tribunal (IAC), Appeal No AA/01079/2010, 10 March 2011) [159]–[161].

73 See eg Mundeba v Entry Clearance Officer—Nairobi [2013] UKUT 00088 (IAC); Muse v Entry Clearance Officer [2012] EWCA Civ 10; Entry Clearance Officer – Kingston v T [2011] UKUT 00483 (IAC). See also R (Sheikh) v Secretary of State for the Home Department [2011] EWHC 3390 (applying the best interests principle in assessing whether the refusal to waive an unaccompanied minor's fee for entry clearance constituted a violation of art 8).

74 See eg R (MXL) v Secretary of State for the Home Department [2010] EWHC 2397 (Admin).

75 See eg R (Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin). Although the denial of permanent residence did not automatically give rise to removal or deportation, the Court considered that that did ‘not reduce or minimise the [Secretary of State's] duty to take account of the best interests of any child directly affected by that applicant and its possible refusal’: at [12]. See more generally R (SM) v Secretary of State for the Home Department [2013] EWHC 1144.

76 In the US, the best interest principle has played a more limited although not inconsequential role in decisions involving the removal of a parent. See eg Beharry v Reno 183 F Supp 2d 584 (ED NY, 2002); Cabrera-Alvarez v Gonzales 423 F 3d 1006 (9th Cir, 2005).

77 (1995) 183 CLR 273.

78 ibid 291 (Mason CJ and Deane J). Gaudron J, at 304, went further, and suggested that there may, in fact, be a foundation for a legitimate expectation even absent the CRC or its ratification: ‘any reasonable person who considered the matter would … assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare’.

79 ibid 292.

80 See in particular Vaitaiki v Minister for Immigration and Multicultural Affairs (1998) 150 ALR 608; Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133. The decision of the High Court in Teoh (1995) 183 CLR 273, and its subsequent application in Vaitaiki (1998) 150 ALR 608 and Wan (2001) 107 FCR 133, has been endorsed widely both within Australia and internationally. In Australia, the jurisprudence has been supplemented with the publication of a series of ministerial directions that stipulate that the best interests of any child must be a primary consideration in deciding whether to refuse or cancel a parent's visa. The most recent ministerial direction (Minister of Immigration and Citizenship (Australia), Direction No 55—Visa Refusal and Cancellation under s 501 (25 July 2012), [9.3(1)], [11.2](1)] (‘Direction No 55’)), directs that ‘[d]ecision-makers must make a determination about whether [cancellation/removal] is, or is not, in the best interests of the child’. The Direction, at [9.3(4)] and [11.2(4)], lists a number of factors which must be considered in assessing the best interests of the child: ‘(a) The nature and duration of the relationship between the child and the person … ; (b) The extent to which the person is likely to play a positive parental role in the future…; (c) The impact of the person's prior conduct, and any likely future conduct, … on the child; (d) The likely effect [of] separation … ; (e) Whether there are other persons who already fulfill a parental role in relation to the child; (f) Any known views of the child … ; (g) Evidence that the person has abused or neglected the child … ; and (h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.’

81 [1999] 2 SCR 817.

82 RSC 1985, c I-2.

83 Baker v Canada [1999] 2 SCR 817, [75].

84 ibid.

85 SC 2001, c 27.

86 A child may also apply directly for humanitarian protection under section 25(1) of the Act: see text (n 92). Section 25(1) is bolstered by section 3(3)(f), which provides that the Act is to be construed and applied in a manner that ‘complies with international human rights instruments to which Canada is signatory’. In De Guzman v Canada (MCI) [2005] FCJ No 2119, [82]–[83], the Federal Court of Appeal confirmed that section 3(3)(f) ‘attaches more than mere ambiguity-resolving, contextual significance’ to international human rights instruments, requiring the Act to be ‘interpreted and applied consistently with an instrument to which paragraph 3(3)(f) applies, unless, on the modern approach to statutory interpretation, this is impossible’.

87 Citizenship and Immigration Canada, IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate Grounds (1 April 2011), [5.12]. For example, these guidelines provide that ‘[t]he relationship between the applicant and “any child directly affected” need not necessarily be that of parent and child, but could be another relationship that is affected by the decision. For example, a grandparent could be the primary caregiver who is affected by an immigration decision and the decision may thus affect the child’.

88 Immigration Act 2009 (NZ) section 207. An equivalent provision was found in section 47 of the Immigration Act 1987 (NZ). A child may also apply directly for protection under section 207 of the Immigration Act 2009 (NZ): see text (n 93).

89 [2009] NZSC 76. See also Huang v Minister of Immigration [2009] NZSC 77, handed down concurrently.

90 Ye v Minister of Immigration [2009] NZSC 76, [24]; see also at [25]: ‘It is appropriate, in the light of New Zealand's obligations under art 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration in the decision-making processes’. The Supreme Court thus affirmed the decision of the High Court (Ding v Minister of Immigration (2006) 25 FRNZ 568) and Court of Appeal (Ye v Minister of Immigration [2008] NZCA 291). The Supreme Court's finding that the best interests of any children are to be taken into account in any immigration decision affecting their parents accords with the approach taken in earlier New Zealand authority: see eg A v Chief Executive, Department of Labour [2001] NZAR 981; Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 (leave to appeal to the Privy Council refused in Puli'uvea v Removal Review Authority [1996] 3 NZLR 538); Elika v Minister of Immigration [1996] 1 NZLR 741; Tavita v Minister of Immigration [1994] 2 NZLR 257.

91 Ye v Minister of Immigration [2009] NZSC 76, [42].

92 Immigration and Refugee Protection Act, SC 2001, c 27, section 25(1). See text (nn 81–7).

93 See generally text (nn 88–91). For examples see, AD (Nigeria) [2012] NZIPT 500451, [52] (allowing the humanitarian appeal of Nigerian mother and three Nigerian children on the basis that it would be contrary to their best interests to ‘face an entirely uncertain future in Nigeria with [their mother], a person with limited intellectual and emotional skills’); BP (Iran) [2012] NZIPT 500965 (allowing the humanitarian appeal of a 10-year-old Iranian girl, where her parents had been recognized as refugees and it was in her best interests to remain with them); BL (Iran) [2012] NZIPT 500963 (allowing the humanitarian appeal of a five-year-old Iranian boy, where his parents had been recognized as refugees and it was in his best interests to remain with them); AD (Czech Republic) [2012] NZIPT 500876 (allowing the humanitarian appeal of a seven-year-old girl from the Czech Republic, where her parents and brother had been recognized as refugees and it was in her best interests to remain with them); AH (South Africa) [2011] NZIPT 500228 (allowing the humanitarian appeal of a South African mother and her five-month-old son in circumstances where they were both at risk of harm from an ex-boyfriend and his gang associates); AH (Iran) [2011] NZIPT 500395 (allowing the humanitarian appeal of a 10-year-old Iranian boy, where his parents had been recognized as refugees and it was in his best interests to remain with them).

94 Migration Act 1958 (Cth) sections 351, 417, 501J. For a discussion on this ‘public interest’ power, see M Foster and J Pobjoy, Submission No 9 to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Inquiry into the Migration Amendment (Complementary Protection) Bill 2009 (28 September 2009).

95 Minister of Immigration and Citizenship, Minister's Guidelines on Ministerial Power (sections 345, 351, 391, 417, 454 and 501J) (P A098, 24 March 2012), [12]. See also Minister of Immigration and Citizenship, Administration of Ministerial Powers (P A124, 24 March 2012), [15.3], which sets out further detail on factors to considered in assessing the best interests of a child. As a matter of practice, the Refugee Review Tribunal may, where a child is ineligible for refugee protection, refer cases to the Minister for consideration: see eg 1206440 [2013] RRTA 102 (6 February 2013), [45]–[50]; 1113067 [2012] RRTA 982 (30 October 2012), [95]–[96]; 1201414 [2012] RRTA 410 (5 June 2012); 1103115 [2011] RRTA 434 (2 June 2011), [32]–[33]; 1102118 [2011] RRTA 415 (30 May 2011), [63]; 1100862 [2011] RRTA 291 (18 April 2011), [50]–[51].

96 Ch 1, section 10 of the Swedish Aliens Act (2005:716) provides that, ‘[i]n cases involving a child, particular attention must be given to what is required with regard to the child's health and development and the best interests of the child in general’. This provision was introduced in 1997 following Sweden's ratification of the CRC. See generally Lundberg (n 6); Eastmond, M and Ascher, H, ‘In the Best Interest of the Child? The Politics of Vulnerability and Negotiations for Asylum in Sweden’ (2011) 37(8) Journal of Ethnic and Migration Studies 1185Google Scholar.

97 Section 6 of the Finnish Aliens Act (301/2004) provides that in any decision concerning children ‘special attention shall be paid to the best interests of the child and to circumstances related to the child's development and health’. This direction applies to applications for residence on humanitarian grounds. See generally A Parsons, The Best Interests of the Child in Asylum and Refugee Procedures in Finland (Vähemmistövaltuutettu 2010).

98 Section 38 of the Act of 15 May 2008 on the Entry of Foreign Nationals into the Kingdom of Norway and Their Stay in the Realm (Immigration Act) provides that ‘[i]n cases concerning children, the best interests of the child shall be a fundamental consideration’ and that ‘[c]hildren may be granted a residence permit [on humanitarian grounds] even if the situation is not so serious that a residence permit would have been granted to an adult’.

99 See 8 USC section 1101(a)(27)(J). SIJS is the only form of protection in US immigration law that expressly incorporates the best interests principle as an eligibility requirement.

100 UKBA, Asylum Process Guidance (n 26) [17.7], now incorporated into the Immigration Rules, r 352ZC.

101 An unaccompanied child will only be eligible for limited leave to remain if they have applied for and been refused refugee and subsidiary protection: Immigration Rules, r 352ZC(b).

102 UKBA, Asylum Process Guidance (n 26) [17.8].

103 General Comment No 14 (n 17) [11]. As noted by Madame Justice McLachlin of the Supreme Court of Canada, ‘[t]he multitude of factors that may impinge on the child's best interests make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty’: Gordon v Goertz [1996] 2 SCR 27, [20].

104 ‘These circumstances relate to the individual characteristics of the child or children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a minority group, having a physical, sensory or intellectual disability, as well as the social and cultural context in which the child or children find themselves, such as the presence or absence of parents, whether the child lives with them, quality of the relationships between the child and his or her family or caregivers, the environment in relation to safety, the existence of quality alternative means available to the family, extended family or caregivers, etc.’: General Comment No 14 (n 17) [48].

105 Although not without controversy, this may also require a decision-maker to take into account the prospective best interests of an unborn child. Although it is generally accepted that, subject to domestic law providing otherwise, the CRC does not apply to unborn children (P Alston, ‘The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child’ (1990) 12 HRQ 156), there is a compelling argument that in the case of a pregnant mother the refugee decision-maker ought to consider the best interests of the unborn child, on the basis that if the child is born she will have rights under the CRC: see eg CA v Secretary of State for the Home Department [2004] EWCA Civ 1165; Griffiths v Minister for Immigration [2003] FMCA 249. Contra SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459.

106 Teoh (1995) 183 CLR 273, 304 (emphasis added). This insightful assumption is made ‘because of the special vulnerability of children, particularly where the break-up of the family unity is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection’: ibid. In Garasova v Canada (Minister of Citizenship and Immigration) (Unreported, Federal Court of Canada, Lemieux J, 2 November 1999) [41], Lemieux J similarly stated that art 3 requires ‘close attention to the interests and needs of children because children's rights and attention to those interests are central humanitarian and compassionate values in Canadian society’.

107 Ye v Minister of Immigration [2009] NZSC 76, [50] (emphasis added). For a recent decision applying the principles set out in Ye, see O'Brien v Immigration and Protection Tribunal [2012] NZHC 2599 (finding that the Tribunal had failed to sufficiently consider the child's best interests and, in particular, the evidence of a psychologist detailing the impact that deportation would have on the child). In SS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 945 the Court of Appeal of England and Wales similarly held that the Tribunal had committed a ‘serious error of law’ by failing to consider the best interests of the children, notwithstanding the fact that this issue was not originally raised by the applicant family. The Court accepted that ‘the duty is now so well established as to give rise to a question that obviously requires consideration, whether or not raised by the appellant … and … a failure to do so amounts to an error of law’: at [17].

108 Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, [32] (emphasis added). This passage was approved by Lady Hale in ZH [2011] 2 AC 166, [159]–[160].

109 ZH [2011] 2 AC 166, [160]. See also Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [19] (‘it is a matter which has to be addressed first and as a distinct stage of the inquiry’); ALJ and A, B and C's Application for Judicial Review [2013] NIQB 88, [96].

110 Nweke v Minister for Immigration and Citizenship [2012] FCA 266, [20].

111 ibid [21]. See also Spruill v Minister for Immigration and Citizenship [2012] FCA 1401, [12]–[19]; Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897, [37]–[51]; Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408, [33]–[44]. In Canada see eg Williams v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 184, [63]; Ferrer v Canada (Minister of Citizenship and Immigration) [2009] FC 356, [6].

112 ‘The words “shall be” place a strong legal obligation on States and mean that States may not exercise discretion as to whether children's best interests are to be assessed and ascribed the proper weight as a primary consideration in any action undertaken’: General Comment No 14 (n 17) [36].

113 Alston, P, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in Alston, P (ed), The Best Interests of the Child: Reconciling Culture and Human Rights (Oxford University Press 1994) 1Google Scholar, 13.

114 Baker v Canada [1999] 2 SCR 817, [75]. For a detailed discussion on the substantive content of the ‘alert, alive and sensitive’ phrase, see Kolosovs v Canada (Minister of Citizenship and Immigration) [2008] FCJ No 211, and its application in PGS v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 10, [60]–[66].

115 Hawthorne v Canada (Minister of Citizenship and Immigration) [2003] 2 FC 555, [32]; AA (AP) v Secretary of State for the Home Department [2014] CSIH 35, [16].

116 Legault v Canada (Minister of Citizenship and Immigration) [2002] 4 FC 358, 369.

117 Ahmad v Canada (Minister of Citizenship and Immigration) [2008] FCJ No 814, [30]. Hence, as the Federal Court of Australia has determined, it is insufficient for a decision-maker simply to speculate as to what may be in the best interests of a child: Lesianawai v Minister for Immigration [2012] FCA 897, [50].

118 This argument has been eloquently made by Goodwin-Gill, who argues that ‘what is in the best interests of the child must necessarily be understood also as including those decisions and actions, the effects of which will continue or be felt after the age of eighteen’: Goodwin-Gill (n 8) 227. See also R (AA) v Upper Tribunal and Secretary of State for the Home Department [2012] EWHC 1784 (Admin), [44] (‘“Best interests” for a 17-year-old are not confined to looking no further ahead than the child's eighteenth birthday. If one were advising a 17-year-old about (say) what educational courses to study, be it to A level or to a technical qualification or otherwise, one would take into account what would happen after the age of 18 in advising on the choices s/he had to make’).

119 As noted by one commentator, a grant of limited leave to remain ‘serves only to postpone removal’ and ‘keep[s] children in a state of limbo with a heightened sense of anxiety and constant fear of the risk of eventual removal as they become young adults’: Bolton, ‘Promoting the Best Interests of the Child’ (n 6).

120 R (ABC) (a minor) (Afghanistan) v Secretary of State for the Home Department [2011] EWHC 2937 (Admin) [58].

121 See CRC, Preamble, arts 6(2), 23(3), 27(1), 29(1)(a), 29(1)(d). See further Goodwin-Gill (n 8) 227.

122 ‘Solutions for children in flight cannot be mortgaged to some future time and place; on the contrary, as the child will not postpone his or her growth or development, so the need to implement elements of a durable solution is immediate’: Goodwin-Gill (n 8) 227.

123 In preparing this Part the author has benefited from discussion and debate with John Tobin. The factors discussed here derive in part from the framework set out in J Tobin, ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 MULR 579; and Tobin, J, ‘Justifying Children's Rights’ (2013) 21 International Journal of Children's Rights 395Google Scholar.

124 ibid; Tobin, ‘Judging the Judges’ (n 123) 579. See also D Archard and M Skivenes, ‘Balancing a Child's Best Interests and a Child's Views’ (2009) 17 International Journal of Children's Rights 1. The point is cogently made by the former UNHCR Assistant High Commissioner, Erika Feller: ‘What is clear is that, in deciding on the best interests of the child, attention has to be paid to the need to involve children in the making of decisions that affect them … Put another way, the “best interest of the child” should be properly understood to accommodate an opportunity for the child to determine what those best interests are, even where this, in the final analysis, is not held to be determinative of what is in the best interests in the individual case’: UNHCR, Statement by Ms Erika Feller, Director, Department of International Protection, UNHCR: The Right to Be Heard for Separated Children Seeking Asylum in Europe, Working Group I—Asylum and Migration, Norrköping, Sweden (1 March 2001) <http://www.unhcr.org/42b970b22.html>.

125 UNCRC, General Comment No 12: The Right of the Child to Be Heard, 51st sess, UN Doc CRC/C/GC/12 (2009) [74]. See also General Comment No 14 (n 17) [43], [53]–[54]. The relationship between art 3 and art 12 received considerable attention during the drafting of the CRC. Indeed, art 12(2) initially formed a subpara of art 3, on the basis that ‘it followed logically from paragraph 1 of article 3 as a means by which judicial or administrative authorities could ascertain a child's best interests in a given case’: UN Doc E/CN.4/L.1575, [28].

126 EU Qualification Directive [2011] OJ L 337/9, para 18: ‘In assessing the best interests of the child, Member States should in particular take due account of … the views of the minor in accordance with his or her age and maturity.’

127 ZH [2011] 2 AC 166, [34].

128 HH [2013] 1 AC 338, [85], citing largely from the amicus curiae submissions of the CORAM Children's Legal Centre.

129 ibid [86].

130 Ye v Minister of Immigration [2009] NZSC 76, [53]; see also Ye v Minister of Immigration [2008] NZCA 291, [134]–[146] (Glazebrook J).

131 Hawthorne v Canada (Minister of Citizenship and Immigration) [2003] 2 FC 555, [33] (‘[i]n order to ensure that the child's wishes are properly considered, Article 12 provides that the child must be given an opportunity to be heard, either directly or indirectly, in administrative proceedings affecting her rights or interests’). See also Vasquez v Canada (Minister of Citizenship and Immigration) [2002] FCT 413, [14] (‘[i]n my opinion, implicit in the minor Applicants’ appearance was that they had a view on the subject of their eventual fate. Whether it was the fault of the principal Applicant in not specifically asking that they should be allowed to speak or the fault of the Immigration Officer in not asking if they wished to speak, the end result is that their views were not expressed. In my opinion their views should be known’); Khader v Canada (MCI) [2013] FCJ No 359, [33]–[34].

132 ‘A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child's identity, including her or his nationality, upbringing, cultural and linguistic background, particular vulnerabilities and protection needs’: General Comment No 6 (n 12) [20]. See also General Comment No 14 (n 17) [48]; Advisory Opinion OC-21/14, Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (19 August 2014) [71].

133 General Comment No 14 (n 17) [76].

134 Théry, ‘“The Interest of the child” and the Regulation of the póst - Divorce Family’ in C smart and S sevenhuijsen (eds), child custody and the politics of Gender (1989) 78, 82. See P Alston and B Gilmour-Walsh, The Best Interests of the Child: Towards a Synthesis of Children's Rights and Cultural Values (UNICEF 1996) 2, for a summary of the key criticisms of the indeterminacy of the provision.

135 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 31(1)-(2).

136 Alston (n 113) 19.

137 Tobin, J, ‘Beyond the Supermarket Shelf: Using a Rights Based Approach to Address Children's Health Needs’ (2006) 14 International Journal of Children's Rights 275Google Scholar, 287. See also Freeman, M, A Commentary on the United Nations Convention on the Rights of the Child: Article 3: The Best Interests of the Child (Martinus Nijhoff 2007) 9CrossRefGoogle Scholar; Alston and Gilmour-Walsh (n 134) 39.

138 General Comment No 14 (n 17) [4]. The approach has also been approved by UNHCR (UNHCR, UNHCR Guidelines (n 23): ‘While determining the best interests of the child, it is important to consider all the rights of the child’ (at 15); ‘[t]he result of the [best interests determination] must take account of the full range of the child's rights, and hence consider a variety of factors … Determining the best interests of a child thus requires taking account of all relevant circumstances, while keeping in mind the indivisible nature of the CRC and the inter-dependency of its articles’ (at 67)) and UNICEF (UNICEF, Implementation Handbook for the Convention on the Rights of the Child (2007) 38: ‘Any interpretation of best interests must be consistent with the spirit of the entire Convention … States cannot interpret best interests in an overly culturally relativist way and cannot use their own interpretation of “best interests” to deny rights now guaranteed to children by the Convention’). It was also affirmed in Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC).

139 Williams v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 184, [64]

140 ibid (emphasis in original).

141 Hawthorne v Canada (Minister of Citizenship and Immigration) [2003] 2 FC 555, [9]. See also Santhirarajah v Attorney-General [2012] FCA 940, [320]; Alcocer v Canada (Minister of Citizenship and Immigration) [2013] FCJ No 2, [13]; Judnarine v Canada (Minister of Citizenship and Immigration) [2013] FCJ No 61, [45]–[47]; Mbikayi v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 1314, [4]–[7]; Sebbe v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 842, [15]–[16]; Sun v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 218, [43]–[48].

142 Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [20]

143 Tobin, ‘Judging the Judges’ (n 123) 589–92.

144 There have been suggestions that decision-makers assessing claims involving the removal of a child may benefit from the provision of a checklist, similar to that which is sometimes provided to decision-makers in the family law arena (see eg Children Act 1989 (UK) s 1(3)): see Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [21]; R (Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin) [19]–[20]. Although the UNCRC (see eg General Comment No 6 (n 12) [84]), UNHCR (see eg UNHCR, UNHCR Guidelines (n 23) 67–76) and a number of States (see eg Minister for Immigration and Citizenship (Australia), Direction No 55 (n 80) [9.3], [11.2]; UKBA, Asylum Process Guidance (n 26) [17.8]) have made efforts to identify those factors that a decision-maker ought to take into account, the CRC itself ultimately provides the most principled ‘interpretation tool’ to give meaning to the content of the best interests principle: FM (Afghanistan) v Secretary of State for the Home Department (Upper Tribunal (IAC), Appeal No AA/01079/2010, 10 March 2011) [152].

145 UNHCR, UNHCR Guidelines (n 23) 67 [3], approved in Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [21]; R (Meaza Asefa) v Secretary of State for the Home Department [2012] EWHC 56 (Admin), [47].

146 See eg Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, [30], approved in ZH [2011] 2 AC 166, [30]; Cebreros v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213, [119]–[121]; Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [41]–[51]; R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) [75]; LD v Secretary of State for the Home Department [2010] UKUT 278 (IAC), [30]; Ye v Minister of Immigration [2008] NZCA 291, [253]–[269] (Glazebrook J), affd Ye v Minister of Immigration [2009] NZSC 76; Diakité v Canada (Minister of Citizenship and Immigration) [2009] FCJ No 217, [87]–[92]. In assessing a child's ability to access education in the destination country, decision-makers have underlined the need to ‘ascertain[] the child's mother tongue and other languages spoken and written (and degree of fluency)’ and to consider ‘[h]ow this would affect [the child's] integration in the community and their participation in the education system in the destination country’: Ye v Minister of Immigration [2008] NZCA 291, [181], [249]–[255] (Glazebrook J). For similar reasoning, see Kim v Canada [2007] FCJ No 1399, [18]–[22]. See generally General Comment No 14 (n 17) [79].

147 See eg Ye v Minister of Immigration [2008] NZCA 291, [256]–[269] (Glazebrook J) (discussing the impact of China's one-child policy on hei heizi or ‘black children’), affd Ye v Minister of Immigration [2009] NZSC 76; FM (Afghanistan) v Secretary of State for the Home Department (Upper Tribunal (IAC), Appeal No AA/01079/2010, 10 March 2011) [108].

148 R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) [31]–[32]; Kolosovs v Canada (Minister of Citizenship and Immigration) [2008] FCJ No 211, [14]; Williams v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 184; Patel v Canada (Minister of Citizenship and Immigration) [2005] FCJ No 1305. See generally General Comment No 14 (n 17) [77]–[78].

149 See eg FM (Afghanistan) v Secretary of State for the Home Department (Upper Tribunal (IAC), Appeal No AA/01079/2010, 10 March 2011) [108], [132].

150 See eg Diakité v Canada (Minister of Citizenship and Immigration) [2009] FCJ No 217 (risk of forced marriage); AA (unattended children) (Afghanistan) CG [2012] UKUT 00016 (IAC), [89]–[93] (risk of indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection); Awolope v Canada (Minister of Citizenship and Immigration) [2010] FCJ No 645 (risk of female genital cutting, and tribal facial scarring). See generally General Comment No 14 (n 17) [71]–[74].

151 See eg ZH [2011] 2 AC 166, [30] (‘[a]lthough nationality is not a “trump card” it is of particular importance in assessing the best interests of any child. The [CRC] recognizes the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8)’), affirmed in HH [2013] 1 AC 338; H v Lord Advocate (Scotland) [2013] 1 AC 413, [12]. See also Sanade v Secretary of State for the Home Department [2012] UKUT 00048 (IAC), [65]; Omotunde v Secretary of State for the Home Department [2011] UKUT 00257 (IAC), [38]; Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, [30]; Vaitaiki v Minister for Immigration and Multicultural Affairs (1998) 150 ALR 608, 614 (Burchett J); Ye v Minister of Immigration [2008] NZCA 291, [110]–[115] (Glazebrook J); and, for a European perspective, Zambrano v Office national de l'emploi (Court of Justice of the European Union, C-34/09, 8 March 2011). Significantly, each of these cases involved children that had been born in the host State. Arts 7 and 8 of the CRC may give rise to distinct considerations where the affected child is a national of another country. As the Upper Tribunal sensibly recognized in Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [25], ‘factors such as citizenship and immigration status can sometimes strengthen, sometimes weaken the argument that the best interests of the child lie in remaining in the [host country]’. In that case, the Tribunal noted ‘the fact that [the claimant] and the children are Indian citizens demonstrates that they have another country to go to and one in which, absent special circumstances, they can legitimately expect to enjoy the benefits of that country's citizenship’. See generally General Comment No 6 (n 12) [20], [84]; General Comment No 14 (n 17) [56]; UNHCR, UNHCR Guidelines (n 23) 67 [3].

152 See eg ZH [2011] 2 AC 166, [29] (noting the relevance of ‘the level of the child's integration in [the host country] and the length of absence from the other country’); LD v Secretary of State for the Home Department [2010] UKUT 278 (IAC), [27] (‘substantial residence as a child is a strong indication … of what the best interests of the child requires’); FM (Afghanistan) v Secretary of State for the Home Department (Upper Tribunal (IAC), Appeal No AA/01079/2010, 10 March 2011) [108]. See also CRC art 20 (recognizing the ‘desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background’); General Comment No 6 (n 12) [84].

153 ZH [2011] 2 AC 166, [29] (noting the need to consider ‘where and with whom the child is to live and the arrangements for looking after the child in the other country’); AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191, [31] (‘[w]hen considering the child's best interests, it must be in the context of the particular circumstances of the child's family’); R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin), [31]–[32]; ALJ and A, B and C's Application for Judicial Review [2013] NIQB 88, [102]. See also General Comment No 6 (n 12) [85], recognizing that ‘[i]n the absence of the availability of care provided by parents or members of the extended family, return to the country of origin should, in principle, not take place without advance secure and concrete arrangements of care and custodial responsibilities upon return to the country of origin’. This is reflected, for instance, in the UK's policy on unaccompanied minors: see UKBA, Asylum Process Guidance (n 26) [17.7].

154 See eg ZH [2011] 2 AC 166, [29] (noting the need to consider ‘the strength of the child's relationships with parents or other family members which will be severed if the child has to move away’); LD v Secretary of State for the Home Department [2010] UKUT 278 (IAC), [26] (‘[v]ery weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she has grown up and lived most of her life’); Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, [30].

155 ‘In order to pay full respect to the obligation of States under article 9 of the Convention to ensure that a child shall not be separated from his or her parents against their will, all efforts should be made to return an unaccompanied or separated child to his or her parents except where further separation is necessary for the best interests of the child, taking full account of the right of the child to express his or her views’: General Comment No 6 (n 12) [81]. See also UNHCR, UNHCR Guidelines (n 23) 72 (‘[r]esettlement is normally in the best interests of the child if it leads to family reunification’); European Commission, Communication from the Commission to the European Parliament and the Counsel—Action Plan on Unaccompanied Minors (2010–2014) [5.1] (‘[i]t is likely that in many cases the best interest of the child is to be reunited with his/her family and to grow up in his/her own social and cultural environment’).

156 See eg Ek v Canada (Minister of Citizenship and Immigration) [2003] FCJ No 680, [33], where the Federal Court held that the immigration officer had erred in its conclusion that a child should be returned to Cambodia in order to be reunited with her parents and family. The Court considered that the officer had ‘almost completely failed to analyse what hardship would be faced by [the child] if she were forced to leave Canada’, giving only ‘cursory mention to her establishment in Canada and her wishes’ and ‘[n]o real consideration … to her schooling or the bond she had with her aunt, uncle and cousins whom the evidence reveals are her current family’. See more generally General Comment No 6 (n 12) [81]–[83]; UNHCR, UNHCR Guidelines (n 23) 71–2; UNICEF (n 138) 316. For academic support, see McAdam, Complementary Protection (n 6) 181–2; Bhabha, J, ‘“Not a Sack of Potatoes”: Moving and Removing Children across Borders’ (2006) 15 Boston University Public Interest Law Journal 197Google Scholar, 204–5.

157 General Comment No 6 (n 12) [82]. The Committee goes on to state (at [83]) that where family reunification is not possible in the destination country (for example, because of country conditions), a State's obligations under art 10(1) of the CRC will be triggered; this art provides that ‘application by a child or his or her parents to enter or leave a State party for the purpose of family reunification shall be dealt with by State parties in a positive, human and expeditious manner’.

158 BP (Iran) [2012] NZIPT 500965.

159 ibid [16]. For a similar result, see AD (Czech Republic) [2012] NZIPT 500876, [12]–[15]; BL (Iran) [2012] NZIPT 500963.

160 See, by way of illustration, IE v Secretary of State for the Home Department [2013] CSOH 142, where the primary decision-maker's analysis of the best interests of the child was premised upon a factual assumption that the child's mother would be removed.

161 UNHCR, UNHCR Guidelines (n 23) 67. See eg IE v Secretary of State for the Home Department [2013] CSOH 142, [14] (‘[I]t seems to me that as a matter of law, as well as logic, the respondent was not entitled to proceed upon a factual assumption that the [parent] would be removed when assessing what was in the best interests of the children’); Kambo v Canada (Minister of Citizenship and Immigration) [2012] FCJ No 936, [39]–[52]. This approach has also been endorsed in cases involving the removal of a parent where the child has a legal right to remain. For example, in Ye v Minister of Immigration [2008] NZCA 291, [407] (Hammond and Wilson JJ), the New Zealand Court of Appeal held that the immigration officer had asked the wrong question by focusing on whether it would be in the best interests of the Ye child to return to China with their mother. In the Court's view the critical question was in fact whether there was ‘something about the circumstances of the children which meant that [their mother] really should be allowed to stay—perhaps for some defined period of time—in New Zealand’.

162 It may, however, be the case that where a family member is a criminal it will not be in the child's interests to remain with that family member. This will require an assessment of the specific situation and circumstances of the child: see text (n 132). The point is made by Lady Hale in HH [2013] 1 AC 338, [33]: ‘[T]here is … a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents’ past criminality may say nothing at all about their capacity to bring up their children properly’.

163 Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [21].

164 General Comment No 14 (n 17) [80].

165 ibid [81]. See further UNHCR, Field Handbook (n 51) 67.

166 ‘The need to keep in mind the “overall” factors making up the best interests of the child consideration must not be downplayed’: Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [24].

167 ibid. See also Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690, [13] (‘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’); Ye v Minister of Immigration [2008] NZCA 291, [130]–[133].

168 CRC art 3(1) (emphasis added). The author has benefited from conversations with Syd Bolton and Catriona Jarvis on the issues raised in this section.

169 Alston (n 113) 13. For example, one of the drafters noted that ‘the interests of the child should be a primary consideration in actions concerning children but were not the overriding, paramount consideration in every case, since other parties might have equal or even superior legal interests in some cases (eg medical emergencies during childbirth)’: UN Doc E/CN.4/L.1575, [24].

170 ZH [2011] 2 AC 166, [26] (Lady Hale).

171 ‘[W]hilst the best interests of the child is a primary consideration, and not the only or the paramount consideration, it is much, much more than merely a consideration to which regard must be had’: R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin) [32]. In other words, ‘[w]hilst it has been judicially recognised that a primary consideration is not the same as a paramount or determinative consideration … it must at least mean a consideration of the first importance’: R (MXL) v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) [84].

172 Alston, ‘The Best Interests Principle’ (n 113) 13. See also Alston and Gilmour-Walsh (n 134) 12; Tobin, ‘Judging the Judges’ (n 123) 588–9; McAdam, Complementary Protection (n 6) 180.

173 Baker v Canada [1999] 2 SCR 817, [75]. Contra the approach taken by the Canadian Federal Court of Appeal in Legault v Canada (Minister of Citizenship and Immigration) [2002] 4 FC 346, [12], which determined that, once the decision-maker has made an assessment as to what is in the best interests of the child, ‘it is up to her to determine what weight, in her view, it must be given in the circumstances’. This position is impossible to reconcile with the language of art 3.

174 See generally CORAM Children's Legal Centre, ‘Case for the CORAM Children's Legal Centre’, Submission in HH v Deputy Prosecutor of the Italian Republic, Genoa, [45]–[46] (copy on file with author); CORAM Children's Legal Centre, ‘Note for the CORAM Children's Legal Centre’, Supplementary submission in HH v Deputy Prosecutor of the Italian Republic, Genoa, [9]–[10] (copy on file with author).

175 See eg HH [2013] 1 AC 338, [11]–[15]; R (Meaza Asefa) v Secretary of State for the Home Department [2012] EWHC 56, [65]; R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), [32]–[35]; ZH [2011] 2 AC 166, [25]–[28] (Lady Hale), [46] (Lord Kerr); Ye v Minister of Immigration [2009] NZSC 76, [52]; Ye v Minister of Immigration [2008] NZCA 291, [59]–[79] (Glazebrook J); Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, [32].

176 ZH [2011] 2 AC 166, [26].

177 ibid.

178 ibid [33].

179 ibid [46].

180 ibid.

181 ibid. Lord Kerr went on to note that ‘[w]hat is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present [involving the removal of a child from a host State], therefore, and it will require considerations of substantial moment to permit a different result’.

182 See eg R (BN) v Secretary of State for the Home Department [2011] EWHC 2367 (Admin), [130]–[132]; Lee v Secretary of State for the Home Department [2011] EWCA Civ 348, [15].

183 HH [2013] 1 AC 338, [145]. Lord Kerr notes that in suggesting that the child's interests should be ‘given a primacy of importance’ he was not seeking to ‘stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”. What [he] was seeking to say was that, in common with the opinion of the High Court of Australia [sic — Federal Court of Australia] in Wan [(2001) 107 FCR 133], no factor must be given greater weight than the interests of the child’.

184 See Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690, [12].

185 Lady Hale's construction has been preferred in subsequent UK decisions. See, in particular, Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690, [10]–[13]. In R (Meaza Asefa) v Secretary of State for the Home Department [2012] EWHC 56, [65], Langstaff J noted that ‘the use of “a primary” consideration assumes, at least on a theoretical level, that other considerations may be sufficiently compelling to rank equally in weight, even if most will be secondary considerations and will not’. But contra the recent statements of the UNCRC in its General Comment No 14 (n 17), which states that ‘[t]he expression “primary consideration” means that the child's best interests may not be considered on the same level as all other considerations’ (at [37]) and that ‘a larger weight must be attached to what serves the child best’ (at [39]). This ‘strong position’ is justified on the basis of the ‘special situation of the child: dependency, maturity, legal status and, often, voicelessness’ (at [37]).

186 General Comment No 6 (n 12) [86]; UNHCR, UNHCR Guidelines (n 23) 76. See also ZH [2011] 2 AC 166, [27]–[28] (Lady Hale); Sanade v Secretary of State for the Home Department [2012] UKUT 00048 (IAC), [65]; R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), [32].

187 ZH [2011] 2 AC 166, [28].

188 ibid; HH [2013] 1 AC 338, [141] (Lord Kerr).

189 R (AN (a child) and FA (a child)) [2012] EWCA Civ 1636, [91].

190 R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), [34].

191 ZH [2011] 2 AC 166, [28] (Lady Hale), [46] (Lord Kerr); Ye v Minister of Immigration [2009] NZSC 76, [31] (‘[w]e do not, however, consider it can have been intended, consistently with relevant international obligations, that a general concern about the integrity of New Zealand's borders will be enough in itself to demonstrate that it would be contrary to the public interest to allow a person fulfilling the first criterion to remain in New Zealand’); R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), [35]. The UNCRC suggests that arguments relating to ‘general migration control’ are not rights-based and can therefore not override an outcome that is in the best interests of the child: UNCRC, General Comment No 6 (n 12) [86]. See also UNCRC, Report of the 2012 Day of General Discussion (n 43) [73], noting that ‘States should make clear in their legislation, policy and practice that the principle of the child's best interest takes priority over migration and policy or other administrative considerations’.

192 ZH [2011] 2 AC 166, [44] (Lord Hope).

193 See eg Lee v Secretary of State for the Home Department [2011] EWCA Civ 348 (the conduct of drug offending father justified the father's deportation and separation from his young son, despite the fact that family unification in the UK was in the children's best interests); Omotunde v Secretary of State for the Home Department [2011] UKUT 00257 (father's conviction for two counts of conspiracy insufficient to outweigh the child's best interests in the family remaining together in the UK).

194 Again, this generally arises where a family member of the child is the subject of an extradition request. See eg HH [2013] 1 AC 338. In that case Lady Hale made clear that ‘[i]t is not enough to dismiss these cases in a simple way—by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for … careful examination’: at [34]. See also Santhirarajah v Attorney-General [2012] FCA 940, [320].

195 See eg Children's Aid Society of Toronto v MM [2010] OJ No 2550, [19], where the Ontario Court of Justice noted that ‘[t]here is no question of encouraging in any fashion or manner whatsoever the act of sending and abandoning foreign children in Canada’. States have tended to rely on anecdotal evidence of this practice: see McAdam, Complementary Protection (n 6) 182 fn 70.

196 ALJ and A, B and C's Application for Judicial Review [2013] NIQB 88, [98]; R (Mozaffar) v Secretary of State for the Home Department [2014] EWCA Civ 854, [42].

197 See eg recent policies in Australia: M Gordon, ‘People Sent Offshore Will Include Children’, Sydney Morning Herald (online), 22 August 2013. See generally Foster, M and Pobjoy, J, ‘A Failed Case of Legal Exceptionalism? Refugee Status Determination in Australia's “Excised” Territories’ (2011) 23(4) IJRL 583Google Scholar.

198 HH [2013] 1 AC 338, [25] (Lady Hale). This argument is developed at length in the amicus curiae submissions of the CORAM Children's Legal Centre in that case: ‘The special protection to be accorded to children and the obligation to implement the best interests principle are not merely matters of private individual rights to be balanced against a public interest in implementing extradition arrangements, they are as important as the maintenance of effective criminal justice systems and, it may justifiably be said, significantly more important than the public interest in the maintenance of effective immigration control system and the public interest in international comity’: CORAM Children's Legal Centre, ‘Case for the CORAM Children's Legal Centre’, Submission in HH v Deputy Prosecutor of the Italian Republic, Genoa, [8] (copy on file with author).

199 Re X (a minor) [1975] Fam 47, 52. As Freeman notes, ‘giving greater weight to children's interests maximizes the welfare of society as a whole … Putting children first is a way of building for the future’: Freeman (n 137) 41.

200 HH [2013] 1 AC 338, [33] (Lady Hale).

201 Singh v Minister of Immigration [2012] NZIPT 500067, [96]. In Manase v Minister of Immigration [2012] NZIPT 500522, [105], the New Zealand Tribunal similarly noted that ‘[i]t is beneficial to society to have stable, supportive families as the fundamental societal structure’. See also Loumoli v Minister of Immigration [2012] NZIPT 50042, [99]–[102]; Vaitaiki v Minister of Immigration [2012] NZIPT 500060, [109]–[111]; AH (South Africa) [2011] NZIPT 500228.

202 Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [24]. See also Ye v Minister of Immigration [2008] NZCA 291, [130]–[133]. See text (n 165).

203 Secretary of State for the Home Department v MK [2011] UKUT 00475 (IAC), [24].

204 See text (n 171).

205 M Freeman, ‘The Human Rights of Children’ (2010) 63(1) Current Legal Problems 1, 20.

206 E Feller, Statement delivered to the EU Seminar on Children affected by Armed Conflict and Displacement (Sweden, 1 March 2001). See generally Pobjoy (n 6).

207 UNHCR ExCom, Conclusion on the Provision of International Protection including through Complementary Forms of Protection No 103 (LVI) (7 October 2005)

208 See (n 8).