Benjamin Hawkin in Supreme Court for ZH (Tanzania) v SSHD

The case of ZH (Tanzania) v SSHD (UKSC 2010/0002) was heard by the Supreme Court on 9-10 November. The panel comprised Lord Hope, Lady Hale, Lord Brown, Lord Mance and Lord Kerr.

The principal issues were:

(1) Whether the British citizenship of children to a mother who is removed is a special or decisive factor in the Article 8 ECHR balancing exercise.

(2) Whether the father of the children being practically unlikely to be able to visit them abroad means that his Article 8 rights should prevail over the interest in removal.

The Secretary of State accepted in her Written Case that on the facts, the Asylum and Immigration Tribunal had been wrong to dismiss the Article 8 appeal, and that the Court of Appeal had erred in upholding the Tribunal's determination. The purpose of the hearing was therefore to give guidance on the issues.

In particular, issue (1) inevitably covered the concept of "the best interests of the child", how this should be evaluated, and what effect it should have in an immigration context. The arguments ranged across Section 55 of the Borders, Citizenship and Immigration Act 2009, the United Nations Convention on the Rights of the Child, the European Union Charter of Fundamental Rights, various General Comments of the United Nations Human Rights Committee and the United Nations Committee on the Rights of the Child, and judicial decisions such as Chen v SSHD (ECJ) (Case C-200/02), [2005] QB 325, M v State (South African Constitutional Court) (Case CCT 53/06), (2007) 23 BHRC 697, and Neulinger and Shuruk v Switzerland (ECtHR) (GC) (Application No. 41615/07), [2010] 28 BHRC 706.

Judgment was reserved.

The Appellant ZH was represented by Manjit S Gill QC and Benjamin Hawkin.