UK - Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent)
| Country of Decision: | United Kingdom |
| Country of applicant: | Congo (DRC) |
| Court name: | Supreme Court |
| Date of decision: | 27-11-2013 |
| Citation: | Zoumbas v. Secretary of State for the Home Department, [2013] UKSC 74 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
In deciding extradition cases, the best interests of the child, although a primary consideration, could be outweighed by other interests, in this case effective immigration control. The impact of the family's extradition on the interests of the children was judged proportional, if weighed against the Zoumbas' appalling immigration record and the fact that the family could be removed without serious detriment to the children's well-being. Important guidelines were given for the decision of cases involving the welfare of children.
Facts:
Mr and Mrs Zoumbas' immigration history is described as 'poor' at best, involving multiple entries from 2001-2 onwards on forged and stolen passports; frequent failed asylum applications, removal to the Republic of Congo in 2005 and illegal re-entry. They married in 2003 and had three children. In June 2010 Mr Zoumbas claimed that his family should be allowed to remain in the United Kingdom since his circumstances had changed and he now had established family life there, which should be protected under article 8 ECHR. The Secretary of State rejected his claim, and Mr Zoumbas applied for judicial review.
Decision & reasoning:
The Court gave a seven-point summary of the law on extradition and 'best interests of the child' in para 10, drawing particularly on ZH and H(H). For example, the best interests of the child are an integral part of the proportionality assessment under article 8 ECHR; are a primary consideration, but not the paramount consideration, and can be outweighed by other considerations; and no other consideration can be treated as inherently more significant. Furthermore, 'it is important to have a clear idea of…what is in the child's best interests' and lastly that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
Counsel for the appellant had claimed that the decision to expel the family was unclearly stated and flawed, citing in particular the judgment in ZH that 'what is determined to be in a child’s best interests should customarily dictate the outcome of cases and that it will require considerations of substantial moment to permit a different result' (par 12). Against this, the Court pointed out that the subsequent decision in H(H) clarified that there could be such considerations, 'even where [they had] severe consequences for children.' In this case, although the proposed removal of the family would interfere with family life (thus engaging article 8 ECHR), the interference had to be weighed against the need to maintain effective immigration control. Parents and children were to be removed together (para 24), and the interference with family life was proportionate to the aim as the Secretary of State had set out in her letter (para 16). 'The decision- maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being' (para 24). They would not be separated from their parents (compare H(H) cited at para 13); while there were no other family members involved, cf Beoku-Betts cited at para 16. The decision to give a lesser weight to the childrens' welfare (given that they were not British citizens, para 24) was appropriate. And it was not necessary 'to consider the children's best interests first and then to address other considerations which might outweigh those interests' (para 19), as counsel for the appellant had conceded. The appellant's challenges to the decision-maker's reasoning were therefore mistaken. However, Lord Hodge in concluding suggests that 'challenges, such as this one, would be less likely if [the Secretary's] advisers were to express the test in the way in which it was expressed in ZH (Tanzania) and to expand the explanation of the separate consideration that was given to the interests of the children'.
Outcome:
Appeal denied.
Observations/comments:
This case can be seen as one of several (in particular the very different H(H)) which explain or extend the guidance on Article 8 immigration cases resulting from Z(H); there is an outline of a process whereby the decision maker should weigh the 'best interests of the child' against other considerations and justify her decision.
For further commentary on the case please see, Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 - a case summary. As noted there, effectively 'the Court has probably made it more difficult to appeal on the basis of insufficient weight being given to the interests of children in article 8 cases.'
This case summary was written by Luke Hodgkin, LLM Birkbeck University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UK - Borders |
| Citizenship and Immigration Act 2009 |
| Immigration Rules |
Cited Cases:
| Cited Cases |
| UK - Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 |
| ECtHR - Neulinger and Shuruk v. Switzerland [GC], Application No. 41615/07 |
| United Kingdom - Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27 |