The United Kingdom has an obligation under Article 3(1) of the United Nations Convention on the Rights of the

Child as follows: "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." This obligation was made binding on the UK Immigration authorities (the former UKBA of the Home Office) by section 55 of the Borders, Citizenship and Immigration Act 2009. This provides that in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom." The need to not only protect but also promote the welfare of children is outlined in the Home Office's own document: Every Child Matters Change for Children (http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/ bci-act1/change-for-children.pdf?view=Binary). This guidance outlines its responsibilities under UK domestic legislation: The Children Act 1989 as well as The Children Act 2004. Section 2(3) of The Children Act 2004 outlines the following: 2(3) The Childrens Commissioner is to be concerned in particular under this section with the views and interests of children so far as relating to the following aspects of their well-being . (a)physical and mental health and emotional well-being; . (b)protection from harm and neglect; . (c)education, training and recreation; . (d)the contribution made by them to society; . (e)social and economic well-being. It is clear from this that the welfare of a child includes a very diverse area. In the Supreme Court decision of ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4 Lady Hale at paragraph 17 sited the European Court of Human Rights (ECHR) case of Uner v The Netherlands (2007) 45 EHRR 14 in which the European Court emphasised two criteria which amongst others must be considered in conducting the proportionality exercise: "[ix] the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and [x] the solidity of social, cultural and family ties with the host country and with the country of destination". In the ECHR case of Neulinger v Switzerland (2010) 28 BHRC 706 the Court noted, at para 135, that there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children, their best interests must be paramount".

Lady Hale states at paragraph 29 that the term 'best interest of the child' involves asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away. Lady Hale went on to state at paragraph 26 that the important thing is to consider the best interest [of the child] first and that no other consideration should be treated as inherently more significant than the best interests of the children. [ INFORMATION REGARDS TO HOW YOUR OWN CHILDREN HAVE ONLY KNOW THE UK, OR ADAPTED TO LIFE IN THE UK. ] At paragraph 31 of ZH (Tanzania) (FC) Lady Hale stated that it is not enough to say that a young child may readily adapt to life in another country." She went on to say that the child cannot be expected to easily adapt in the case of children who have lived here all their lives and are being expected to move to a country which they do not know. We would therefore expect that the Secretary of State not to make any decision which would be adverse to the safety and welfare of any children mentioned in applications for leave to remain. This, however, is clearly not the case. Similarly, the case of Zaira Tinizaray v SSHD [2011] EWHC 1850 (Admin) raised the question of how to apply Section 55 ("BClA) and of the decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4. In this case HH Antony Thornton QC stated that it is necessary for a decision-maker to take into account the following essential matters when making a decision that requires the exercise of a section 55 duty. Such matters include: (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question. Any change in a child's circumstances could adversely affect their welfare. Any decision made without applying the above criteria will mean that the Secretary of State has not complied with its duty of safeguarding the welfare of the children as required under Section 55 of the Borders, Citizenship and Immigration Act 2009. Further, in MK (best interests of child) India [2011] UKUT 00475 (lAC) the head note to the decision states:

(i) The best interests of the child is a broad notion and its assessment requires the taking into account and weighing up of diverse factors, although in the immigration context the most important of these have been identified by the Supreme Court in ZH (Tanzania) the Court of Appeal in AJ (lndia) [2011] EWCA Civ 1191 and by the Upper Tribunal in (Article 8- best interests of child) Nigeria [2011] UKUT 00315 (IAC). (ii) Whilst an important part of ascertaining what are the best interests of the child is to seek to discover the childs own wishes and views (these being given due weight in accordance with the age, and maturity of the child) the notion is not a purely subjective one and requires an objective assessment. (iii) Whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), ZH (Tanzania) makes clear that it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration. (iv) What is required by consideration of the best interests of the child is an overall assessment" and it follows that its nature and outcome must be reflected in the wider Article 8(2) proportionality assessment. Consideration of the best interests of the child cannot be reduced to a mere yes or no answer to the question of whether removal of the child and/or relevant parent is or is not in the childs best interests. Factors pointing for and against the best interests of the child being to stay or go must not be overlooked. (v) lt is important when considering a childs education to have regard not just to the evidence relating to any short-term disruption of current schooling that will be caused by any removal but also to that relating to the impact on a childs educational development, progress and opportunities in the broader sense. Again, paragraph 21 of MK states that: ...the best interests of the child consideration - is not to be approached as a simplistic or reductionist exercise. Baroness Hale refers approvingly to the position taken by the UNHCR in para 1.1 of its Guidelines on Determining the Best interests of the Child (May 2008) that [t]he term best interests broadly describes the well-being of the child. Para 1.1 goes on to state that such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the childs environment and experiences. In this UNHCR document and other sources on which it draws, the best interests of the child consideration is to be seen to require a broad-ranging inquiry and to encompass multifarious factors including the child's need for security, continuity of care and affection and the opportunity to form long term attachments based on mutual trust and respect. As stated by the same UNHCR Guidelines at Para 3:

[t]he result of the best interest of the child determination must take account of the full range of the childs rights, and hence consider a variety of factors. The best interests of the child are rarely determined by a single, overriding factor. We are aware there have been suggestions that decision-makers might benefit from a check-list relating to the welfare of the child akin to that which family court judges are required to take into account under s.1(3) of the Children Act 1989. However, it seems clear that the guidance given in ZH (Tanzania) has already accomplished the task of identifying the factors which require particular attention in cases in which children are affected by expulsion measures. You would no doubt be aware of the findings in LD (a case pre-dating ZH (Tanzania) paragraph 26 states that: "Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life. Again applying the principle in LD, it is clear that the question as to what constitutes the best interest of the child cannot be answered by a simple yes or no response. Determining his best interest involves a detailed assessment of the overall circumstances - and his family. In considering Article 8 cases, the Secretary of State is required to look at the family life and third party rights; AB (Jamaica) v SSHD [2007] EWCA Civ 1302 and BeokuBetts v SSHD [2008] UKHL 39 at paragraph 4 and paragraph 43. Beoku-Betts v SSHD [2008] UKHL at paragraph 43 states: there is only one, family life", and that, assuming the appellants proposed removal would be disproportionate looking at the family unit as a whole, then each affected family member is to be regarded as a victim. You will also be aware that in Chikwamba [2008] UKHL 40 the House of Lords considered that it was wrong for the Home Office to merely ask someone who has established family life in the UK to return to his or her country of origin and make an application for entry clearance to join the family here. Proportionality; In Huang v SSHD [2007] UKHL, the need for exceptionality was abolished; and now the assessment is based on reasonableness. In that sense the SSHD is now required to determine whether it would be reasonable for the applicant to exercise their private and family life (Article 8 (2)) elsewhere. At paragraph 18 of the decision in Huang that the article imposes on member states not only a negative duty to refrain from unjustified interference with a persons right to respect for his or her family but also a positive duty to show respect for. Please note from the precedent in AG [Eritrea] [2007] EWGA CIV 801; that the threshold for article 8 to be engaged is not an especially high one In addition to this,

United Nations Convention on the Rights of the Child Article 24 - Charter of Fundamental Rights Of The European Union (2000/C 364/01) - http://www.europarl.europa.eu/charter/pdf/text_en.pdf

Further on, the meaning of Article 24 - Charter of Fundamental Rights Of The European Union (2000/C 364/01) (http://www.europarl.europa.eu/charter/pdf/text_en.pdf) is self explanatory: Article 24 - The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Zambrano Case C-34/09 In the case of Ruiz Zambrano (Case C-34/09 of the European Court of Judgement (ECJ) http://www.bailii.org/eu/cases/EUECJ/2011/C3409.html), the court made the following ruling: Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. Following this ruling, the Home Office went into a very lengthy process to establish what it believed the response to this ruling should be. On 8 November 2012, the Immigration (European Economic Area) Regulations 2006 were then amended to give affect to this ruling. A right to reside in the UK on the basis of the ECJ judgment in Ruiz Zambrano, as with the case of Chen, does not stem directly from Directive 2004/38/EC. However, as with the case of Chen, it is derived from Article 6 of Directive2004/38/EC and is therefore referred to as a 'derivative right'. The result of this being that the recognition of this derivative right by the UK is not equal to rights under the directive. It is the case that the UK Home Office expects applicants for a Derivative Residence Card to prove that they are the sole carer for the British Citizen. This is not however conducive to protecting and respecting the rights of citizens to their own family life which in their own guidelines (Article 8 and Zambrano IDI's:

https://www.whatdotheyknow.com/request/idis_zambrano_article_8_informat#incomi ng-392395) they actually state:

(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parent In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.

Taking this on board with the obvious pre-dated case of Carpenter (Case C-60/00) as in the Home Office's own words (https://www.whatdotheyknow.com/request/159913/response/421565/attach/3/FOI %2028377%20response.pdf): The Carpenter case simply highlights the fact that Member States cannot take action against the family members of EU nationals which would breach their rights under Article 8 of the ECHR. While the context of the case related to the exercise of the freedom to provide services, the determining factor in the case was the disproportionate effect of the proposed deportation of Mr Carpenter's wife. In the case of MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC) (http://www.bailii.org/uk/cases/UKUT/IAC/2013/00380_ukut_iac_2013_ma_sm_iran .html) it was outlined clearly that a clear examination in the case of children should be conducted. At Para 60 it was emphasised that: As a starting point, the best interests of a child are usually best served by being with both parents. As outlined previously at Para 55, this was also made clear by the Tribunal in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC): i) The exercise of the duty by the Entry Clearance Officer to
assess an application under the Immigration Rules as to whether there are family or other considerations making the childs exclusion undesirable inevitably involves an assessment of what the childs welfare and best interests require. ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is an action concerning children...undertaken by administrative authorities and so by Article 3 the best interests of the child shall be a primary consideration.

iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of States IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55. iv) Family considerations require an evaluation of the childs welfare including emotional needs. Other considerations come in to play where there are other aspects of a childs life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:a. there is evidence of neglect or abuse; b. there are unmet needs that should be catered for; c. there are stable arrangements for the childs physical care. The assessment involves consideration as to whether the combination of circumstances is sufficiently serious and compelling to require admission.

Laws LJ gave the lead judgment in SS (Nigeria) v SSHD [2013] EWCA Civ 550. At [44] he provides analysis of what is understood by the interests of a child or children being a primary consideration, and at [44]:
There are yet further quotations such as when

with great respect they are capable if not carefully

understood, of investing child cases with a uniform prevailing force which yields no or little space to the context in hand. As for the first characteristic, the key phrase is of course a primary consideration. It appears from ZH and subsequently, but is taken from Article 3(1) of the UNCRC, so the choice of words may be regarded as having particular significance. What sense is to be given to the adjective primary? We know it does not mean paramount other considerations may ultimately prevail. And the childs interests are not the but only a primary consideration indicating that there may be other considerations which, presumably, may count for as much. Thus the term primary seems problematic. In the course of argument Mr Auburn accepted that a primary consideration should be taken to mean a consideration of substantial importance. I think that is right.