NI High Court: Judge finds ‘best interests’ of 6-year-old child may mean being deported to China alongside his parents

About this case:

• Citation:
  [2023] NIKB 73
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Adrian Colton

The court upheld a tribunal decision as rational, which rejected the mother’s claims of facing persecution in China due to her political party associations, as well as arguments that her English-speaking son would be negatively impacted by being forced to learn Mandarin.

Background

The applicant was a Chinese national who arrived in the UK in September 2009, and claimed asylum in May 2016, after she was detected by authorities. She claimed that she was at risk of political persecution if she returned to China, due to her association with the China Xinmin Party (China New Democratic Party). She currently resides in Belfast with her six-year-old son, who was born in July 2016.

The proposed respondent rejected her claim for asylum in November 2016, and her appeal against that decision was dismissed in February 2018. She then became appeal rights exhausted. The proposed respondent issued a fresh decision in February 2023, which was now being challenged. The basis of the applicant’s submission in 2021 was that her son’s Article 3 and 8 Convention rights would be at risk if they were both forced to return to China.

The applicant contended that the decision to reject these submissions was flawed, as it failed to properly consider section 55 of the Borders, Citizenship and Immigration Act 2009, and failed to properly apply paragraph 353 of the Immigration Rules.

The relevant law

Section 55(1) and (3) of the 2009 Act focus on the need to safeguard and promote the welfare of children who are in the United Kingdom. In 2009 the Secretary of State published guidance pursuant to subsection (3), namely “Every Child Matters: Statutory Guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children.”

The court also highlighted the decision of JG v Upper Tribunal Immigration and Asylum Chamber [2019] NICA 27. This noted that the relevant inquiry for a court or tribunal in every case would be whether the decision maker:

(i) has conducted an assessment of the child’s best interests and next, having done so, (ii) had had regard to the need to safeguard and promote those interests. In JG, Justice McCloskey noted: “Every breach of the section 55(3) duty exposes the child concerned to the real risk that his or her best interests will simply be disregarded.
Has the proposed respondent failed to engage with section 55?

It was argued that there had been a failure by the proposed respondent to engage with its section 55(3) duty. This included a failure to consult with a child, as per the guidance, which was claimed to amount to “an error of law.”

Further, it was argued that applicant’s son’s article 3 and 8 rights would be breached should he be returned to China. She stated that her son was born out of wedlock, and would therefore be denied social welfare rights, including adequate healthcare and free education. The applicant argued that her son would be forced to switch from learning in English, to learning and speaking Mandarin, which would adversely affect his cognitive ability. She also noted that the birth of her son was in breach of China’s family planning policy.

However, in the February 2018 decision of the First Tier Tribunal, the tribunal rejected the claimed fear of persecution based on the applicant’s connection with a banned political party. In relation to the breach of the family planning policy, it was noted that this was a civil rather than a criminal matter, which would merely result in a fine, likely an amount within her means.

Further, the current guidance noted that there has been a “significant decrease in any concern about Chinese family planning policy.” Similarly, in relation to the son’s language and education, the decision maker noted his young age, and found that it would be reasonable for his parents, both Mandarin speakers, to assist with his integration with the language and the Chinese education system.

Ultimately, they found that the evidence failed to “demonstrate that you would not be able to continue your family life in China as you have done previously” and that it would be in the best interests of her son to remain with the family unit, even if this meant relocating outside of the UK.

The court noted that this was clearly addressing “the best interests of the child”, and therefore the tribunal did have regard to section 55.

Consideration

One submission highlighted that the Home Office failed to consult with the applicant’s son in accordance with published guidance. In the court’s view, this guidance did not impose a mandatory obligation on the agency to consult directly with a child when considering his or her best interests.

Consultation was only necessary “wherever practicable”, and it could not be seriously suggested that a Home Office agent was expected to speak with a six-year-old to understand their wishes.

Parents and carers have primary responsibility for children’s concerns, and the applicant fully articulated what she considered to be in the best interests of the child.
Ultimately, the court found that in the decision under challenge, the decision maker looked at the best interests of the child and came to a rational conclusion.
Seven-year threshold

The court made a final point, noting that the applicant’s son will be seven years of age on 12 July 2023. Under the immigration rules, if the applicant has a parental relationship with a child who has lived in the UK continuously for at least seven years immediately preceding the date of the application, then: “Taking into account their best interests is a primary consideration it would not be reasonable to expect a child to leave the UK”.

As such, given that the seven-year-old threshold has passed, the court accepted that these proceedings may have been rendered futile.

Conclusion

Despite the fact that the case may have become academic, the court concluded that the threshold for leave set out in the case of Ni Chuinneagain [2022] NICA 56, of an arguable case having a real prospect of success, had not been met.

Therefore, leave for judicial review was refused.