Landmark human rights ruling allows asylum mother to remain in UK

Supreme court says deporting woman who lied on asylum application would infringe rights of her British children

Immigration authorities will have to listen to the views of children whose parents are facing deportation, the supreme court has said, in a landmark human rights ruling on the rights of children born to illegal immigrants.

In a case brought by a Tanzanian woman whose asylum claims had failed, the court ruled today that her two British children, aged 9 and 12, were entitled to remain in the UK and have relationships with both their parents. They upheld her appeal and allowed her to stay in the country.

The woman, known as ZH, had previously failed to argue she should be allowed to remain in the UK after she made fraudulent asylum claims, posing as a Somali on two occasions. Despite describing her immigration history as appalling the court said the children – whose father was British – should not be held responsible for their parents’ shortcomings.

“[These] are British children, they are British, not just through the ‘accident’ of being born here, but by descent from a British parent; they have an unqualified right of abode here,” said Baroness Hale, delivering the court’s leading judgment.

“They have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with the father here. It is not enough to say that a young child may readily adapt to life in another country. These children were innocent of their parents’ shortcomings.”

The children, known as T and J, were British citizens but would have had to leave the UK to continue living with their mother, or face separation from her to remain in the country with their British father, who has HIV and alcohol problems.

The case, which expands the law on the human rights of British children whose parents face removal, also delivered a stark warning to immigration authorities to change their approach to dealing with young people.

“Immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so,” said Hale.

The government contested the case to avoid setting a precedent that would make it easier for asylum applicants to remain in the UK if they had children with British parents. Although the court conceded that British citizenship is not a “trump card”, immigration minister Damian Green said he was unhappy with the ruling.

“I am disappointed by the supreme court’s decision, as both the appeals tribunal and the court of appeal agreed that it was reasonable to expect this woman to return to Tanzania,” said Green.

“The supreme court acknowledged that this individual’s immigration history is ‘appalling’. In those circumstances I do not believe people should expect to be able to stay in the UK. We are now considering how best to implement this judgment.”

Groups representing asylum applicants said the judgment was a significant step forward.

“Today’s ruling clearly highlights the vulnerability of children in the immigration system,” said Syd Bolton and Baljeet Sandhu, co-directors of the Refugee Children’s Rights Project. “The court has now set in stone the need to recognise the rights of the child and has sought to address the injustice done to children when immigration control is put before their welfare and needs.”

Afua Hirsch, legal affairs correspondent, Tuesday 1 February 2011