The power to certify that removal pending appeal against a refused human rights claim would not cause serious irreversible harm or breach human rights will in some cases impact on children.
There is a clearly established framework of legislation, judicial decisions, guidance and procedure around how immigration decisions which affect children are made, which will apply to any decision to certify a refused human rights claim. The “children duty” Section 55 of the Borders, Citizenship and Immigration Act 2009 establishes a statutory duty on the Secretary of State to have regard to the need to safeguard and promote the welfare of any child in the UK who will or may be affected by any immigration decision. This duty will apply to a decision to certify a human rights claim. In any case, where the decision maker is aware that there is a child who is affected by her decision, the decision maker will have regard to the best interests of that child as a primary consideration in deciding the human rights claim and also in deciding whether to certify the claim so that the appeal is heard after the person has left the UK.
Individual circumstances of each case While the best interests of the child are a primary consideration, they are not the only or an overriding consideration. The decision maker must have regard to all the circumstances of the case in reaching the decision on whether or not to certify the case. There is published guidance for decision makers on how to take into account the best interests of any child affected by the decision.
When considering whether to certify the decision maker is considering the effect of temporary interference with family/private life while the appeal is being determined. In some circumstances a non-suspensive appeal will not be appropriate because, although the appellant would normally return to the UK if the appeal was successful, the temporary removal would create a real risk of serious irreversible harm or otherwise breach human rights .
This may be the case in some decisions concerning children. There will also be some circumstances where any impact on a child would not give rise to such a breach. Many people around the world reasonably and legitimately take their children to live in another country either temporarily or permanently and many people temporarily live apart from their families for work or other reasons.
Assessment
The impact on a child of a decision to certify will vary depending on the child and the family circumstances. Those being removed will be asked to give reasons why their case is not suitable for certification prior to a decision on certification being made.
Those reasons can include the impact on any children. All such reasons will be carefully considered. The courts have been clear (for example in Behary v SSHD [2013] EWHC 3575 (Admin)) that it is for the person to set out their reasons. The family of the affected child will be best placed to identify the potential impact of certification in their particular circumstances. There are no restrictions on the evidence a family can submit, including evidence from the child’s school, or medical practitioners, or any other evidence of the impact on the particular child.
Whether the decision maker will contact external agencies to establish the likely impact on a child will depend on the facts of the case. For example, where the decision maker is aware that social services are involved with the child, further enquiries may be made of social services if the decision maker thinks those enquiries are appropriate and necessary.
There is no obligation to make proactive enquiries in every case, as confirmed by the Court of Appeal in SS (Nigeria) [2013] EWCA Civ 550. Safeguards The Secretary of State’s decision that removal pending appeal will not give rise to a risk of serious irreversible harm or otherwise breach the person’s human rights (or those of their child or other family members) can be challenged in judicial review proceedings.
Unaccompanied children
This power does not apply to asylum claims and so will not apply to unaccompanied asylum seeking children. Where the asylum claim is refused, a child will be granted leave until they are 17½ years old unless adequate reception arrangements are in place for them in their home country. Where a child has been in the UK for 7 or more years they may be entitled to be granted leave to remain on the basis of private life if it would not be reasonable to expect them to leave the UK.
However, there may be circumstances where it would be appropriate to use this power involving unaccompanied children, for example if a child who is living in the UK with members of their wider family has made a human rights claim which has been refused, and they have parents in another country to whom they can return and who can support them with any appeal.
