Case No. UKUT-00227-(IAC)

nues to intrigue. It has proved nothing if not organic during recent years. The determination of these appeals does not require a detailed treatise. Rather, it suffices to draw attention to three matters. The first is the opinion of Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, at [42] – [44], which merit reproduction in full: “[42] In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, Lady Hale at para 21 quoted with approval the observation of the Grand Chamber of the ECtHR in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, that "the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law". The Court of Appeal concluded, however, that the circumstances of the present case left no room for either of the international conventions to give a steer to the proper interpretation of Cameron's rights. Consistently with that conclusion, the Secretary of State proceeds to submit that it is in principle illegitimate to have regard to the conventions and in this regard he relies upon the recent decision of this court in the SG case cited at para 39 above. [43] It is clear that in the SG case the Secretary of State submitted that, while an international covenant might inform interpretation of a substantive right conferred by the Convention, it had no role in the interpretation of the parasitic right conferred by article 14 and thus, specifically, no role in any inquiry into justification for any difference of treatment in the enjoyment of the substantive rights. But his submission was not upheld. While Lord Reed did not expressly rule upon it, it was rejected by Lord Carnwath (paras 113-119), by Lord Hughes (paras 142-144), by Lady Hale (paras 211-218) and by Lord Kerr (paras 258-262). Lord Carnwath, for example, pointed out at paras 117-119 that the Secretary of State's submission ran counter to observations in the Court of Appeal in the Burnip case, cited at para 23 above, and indeed to the decision of the Grand Chamber in X v Austria (2013) 57 EHRR 405. The decision of the majority in the SG case was not that international conventions were irrelevant to the interpretation of article 14 but that the UN Convention on the Rights of the Child was irrelevant to the justification of a difference of treatment visited upon women rather than directly upon children: para 89 (Lord Reed), paras 129-131 (Lord Carnwath) and para 146 (Lord Hughes). [44] The noun adopted by the Grand Chamber in the Neulinger case, cited above, is "harmony". A conclusion, reached without reference to international conventions, that the Secretary of State has failed to establish justification for the difference in his treatment of those severely disabled children who are required to remain in hospital for a lengthy period would harmonise with a conclusion that his different treatment of them violates their rights under two international conventions.” In short, certain provisions of international treaties, in particular the UNCRC, have gently, seamlessly and progressively influenced and seasoned domestic law via the Human Rights Act 1998, as a result of the duty imposed on courts and tribunals by section 3(1) thereof and the long established practice of the ECtHR of taking into account relevant provisions of international law. 30. Second, bearing in mind section 55 of the 2009 Act, it is clear that Article 3(1) of UNCRC cannot be considered in a vacuum, isolated from the remaining provisions of the Convention. The meaning and reach of Article 3(1) must take their colour from, and be informed by, other provisions of this instrument. Article 31 of the Vienna Convention on the Law of Treaties requires no less. It provides, in material part: “General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes …. “ 31. Third, decisions which give proper effect to both of the duties enshrined in section 55 may legitimately be influenced by unincorporated provisions of international law, having regard to the expression of the Secretary of State’s policy in the statutory guidance made under section 55(2). This is found in “ Every Child Matters: Change For Children ”, which contains, at paragraph 2.6, the following passage: “ The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the EU Reception Conditions Directive, the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Convention on the Rights of the Child. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies. ” [Emphasis added] Within this passage one finds the clearest of assurances that, as a matter of policy, these several instruments of international law will be given effect when the Secretary of State and her various alter egos , which include UKBA, UKVI and ECOs, are making immigration (and related) decisions which affect children. Moreover, the absence of any territorial limitation comparable to that contained in section 55(1) is notable. 32. Thus the principle enunciated in R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839 applies fully. Applying orthodox principles of public law, it matters not that the materials, or considerations, identified in ”Every Child Matters (etc)” have the status of unincorporated international treaties. If this publication had the standing of a (mere) governmental policy, the Secretary of State would be expected to give effect to it: Lumba v Secretary of State for the Home Department [2011] UKSC 12 at [26], per Lord Dyson JSC. I consider that this duty applies a fortiori given that the publication is an instrument made pursuant to a duty imposed by primary legislation. By formulating the statutory guidance in this way the executive has chosen to give indirect status in domestic law to certain measures of international law which have not been incorporated by legislation. 33. The international law/domestic law dichotomy in United Kingdom law traditionally conjured up notions of polarisation and insularity. Having regard to the developments mapped above, the gulf between the two notional extremes has narrowed significantly and this is illustrated by the decision making context under scrutiny in these proceedings. The so-called dualist doctrine has evolved and has undergone some dilution in consequence. All of this is, ultimately, a reflection of the intrinsically organic nature of the common law. Conclusions 34. At this juncture I remind myself of the fundamental question to be determined in these conjoined appeals: is the interference with the family life of the Appellants and M, brought about by the refusal decisions of the ECO, a proportionate means of securing the legitimate aims in play? Or, alternatively, one might ask which is to prevail: the interests of the three family members or the public interest? 35. On one side of the scales there is a strong family unit whose members are clearly united and fortified by strong bonds of love, affection and interdependency. They long to be reunited and have gone to substantial lengths and have made considerable sacrifices to achieve this goal. For as long as separation continues, this will be a disfunctioning, debilitated and under achieving family. The main feature of this under achievement will be the family’s inability to attain its potential as one of the key elements of modern societies throughout the world. The under performance of family members and family units, in this respect, does not further any identifiable public interest. On the contrary it is antithetical to strong and stable societies. These features of the family unit under scrutiny in these appeals are exposed in a context where M, being the older of the two male sons, is, culturally, considered to be the head of the family. This family, bereft of its natural head by circumstances and not by choice, is now deprived of his successor and has been thus bereft for almost four years. 36. The evidence establishes clearly that the sponsor is under achieving as a person. This means that his contribution, actual and potential, to United Kingdom society is diminished. This arises in circumstances where he has demonstrated his willingness to adapt to United Kingdom culture and to study earnestly in this alien country. The prediction that society will secure some benefit if the sponsor achieves family reunification in this country is readily made. Thus reunification will promote, rather than undermine, the public interest in this respect. It will be manifestly better for society than maintenance of the status quo. 37. Furthermore, if family reunification cannot be achieved in the United Kingdom, M will be driven to consider alternatives, some of them manifestly dangerous given his youth and unaccompanied and unsupported status. These include the precarious journey involved in attempting to reunite with the Appellants wherever they may be at present. The evidence points to the probability that they are either in Khartoum or the UNHCR refugee camp several hundred kilometres away. The situations in both locations are fraught with danger and imbued with deprivation. Reunification of this family in their country of origin, Eritrea, is not a feasible possibility, having regard to the factual framework rehearsed in [5] – [9] above. 38. I consider it distinctly possible that if family reunification cannot be secured in the United Kingdom, the sponsor will depart these shores in the dangerous pursuit of one of the alternatives mooted above. This would deprive him of the protections which he has obtained as a result of being recognised a refugee. This would be manifestly undesirable for him, contrary to the public interest and incompatible with the philosophy and rationale of the Refugee Convention. It would also expose him to a risk of violating his Convention rights, in particular those protected by Articles 3 and 4. In the real world, recognition of this possibility is far from fanciful. I consider this to be a potent factor in the balancing exercise. Resort to this Tribunal is very much a measure of last resort for him. 39. Next, it is necessary to give effect to the principles enunciated in Mathieson – ( supra ) together with those aspects of the Secretary of State’s statutory guidance noted in [31] above. I do not deduce from any of these principles or sources that the Secretary of State is under a duty to facilitate reunification for this family in the United Kingdom with the result that the impugned decisions of the ECO are vitiated. The existence of an absolute duty of this nature was not argued and I do not consider that such duty exists. However, in my view the orientation of these principles and policies is to favour, rather than undermine, what the Appellants seek to achieve by these appeals. They qualify for substantial weight in the proportionality balancing exercise. 40. On the other side of the scales lies the public interest. This engages the provisions in sections 117A and 117B of the 2002 Act, reproduced in [13] above. Thus, in summary: the public interest in the maintenance of effective immigration controls is engaged; I shall assume that neither of the Appellants speaks English; and I further assume that neither Appellant is, or will be, financially independent, at least for the foreseeable future. Section 117B(4) does not apply. Nor does section 117B(5), given the concession – properly made – of Mr Poole on behalf of the Secretary of State that the M’s immigration status in the United Kingdom has not been precarious, given the grant of five years leave to remain qua refugee. Nor does section 117B(6) apply. 41. Is any other public interest engaged? Mr Poole, in his skeleton argument, sought to identify two such interests: (a) the safeguarding of children, specifically those in the position of the sponsor, who would be at risk of trafficking and exploitation in their quest to reach the United Kingdom; and (b) additional pressure on publicly funded childrens’ services. There is no primary legislation underpinning either of these asserted public interests. Moreover, there is no evidence underlying them – in the form of, for example, reports or commentaries. I recognise that evidence of this kind is not a prerequisite to the recognition of a public interest in the Article 8(2) balancing exercise. However, I cannot overlook that these public interests are advanced through the medium of counsel’s written and oral submissions. 42. Furthermore, this unsatisfactory dimension of the Secretary of State’s case is highlighted by the belated production of certain data. While I have considered this material, I observe that it does not have the benefit of related reports or the illumination or elaboration of witness statements. Nor is there any financial data even at a general level. In addition, the figures require clarification, which is lacking. In my judgment, the only conclusion which can safely be made is that there has been some increase in the advent of unaccompanied children to the United Kingdom during the past two years. That said, the figures are substantially smaller than those applicable to the years 2008 and 2009. While I take all of this evidence, including counsel’s submissions, into account, I consider that its potency is questionable for the reasons given. Furthermore, I reiterate my analysis of the governing legal principles above. 43. This brings me to my overarching conclusion. Taking into account the considerations, assessments and reasons highlighted in [34] – [42] above, it is my conclusion that, balancing everything, the impugned decisions of the ECO, acting on behalf of the Secretary of State, interfere disproportionately with the right to respect for family life enjoyed by the Appellants and M. As the ultimate arbiter of proportionality I decide accordingly. Thus I re-make the decision of the FtT by allowing the appeals. Decision The appeals are allowed under Article 8 ECHR. Signed: THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Dated : 29 February 2016 APPENDIX EVERY CHILD MATTERS CHANGE FOR CHILDREN Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 November 2009 Fo r ewo r d Int r oduction Pa r t One – General A r rangements to Safegua r d and P r omote W elfa r e Pa r t T w o – A r rangement s i n th e Unite d Kingdo m Bo r de r Agenc y t o Safegua r d an d P r omot e Child r en’ s W elfa r e 14 Annex A: Indicators of T raffickin gIt is the duty of Government and of society as a whole to keep children safe. Public agencies have a particular responsibility to do this, both within their own area of business and in the way in which they work together.Section 11 of the Children Act 2004 places a duty on specified public bodies and key individuals to carry out their functions having regard to the need to safeguard and promote the welfare of children. This applies across a wide range of public activity, from schools to prisons.Section 55 of the Borders, Citizenship and Immigration Act 2009 now places a similar duty on the UK Border Agency. This is a naturalprogression for the Agency which has been steadily improving how it works with children. Last year, the Government lifted its general reservation relating to immigration on the UN Convention on the Rights of the Child, and in January of this year we introduceda statutory Code of Practice for the UK Border Agency on Keeping Children Safe from Harm. The Code is superseded by this new duty which now places the UK Border Agency on the same footing as other public bodies working with children.As Ministers for Immigration and Children, we welcome this coming together and are confident that it will help to support more effective joint working.The UK Border Agency undertakes difficult and sensitive work on behalf of society as a whole. Working with children presents particular challenges. To meet these challenges effectively, the UKBorder Agency needs the support of all those with an interest in children. The development of this guidance has been greatly assisted by the input ofa range of organisations outside Government. We are grateful for this and look forward to continued co-operation to achieve the better outcomes for children which we all want to see. Phil W oolas Minister of State for Bo r ders and Immigration Ba r ones s Delyt h M o r g a n Parliamenta r y U n d e r - S ec r e t a r y o f Stat e fo r Child r en , Y o u n g Peopl e an d Familie s INTRODUCTION 1. Improving the way key people and bodies safeguard and promote the welfare of children is crucial to improving outcomes for children.2. Section 55 of the Borders, Citizenshipand Immigration Act 2009 (the 2009 Act) therefore places a duty on the Secretary of State to make arrangements for ensuring that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK. A similar duty is placed on the Director of Border Revenue in respect of the Director’s functions.3. The guidance sets out the key arrangements for safeguarding and promoting the welfare of children as they apply both generally to public bodies who deal with children (Part 1) and specifically to the UK Border Agency (Part2). These arrangements will help agencies to create and maintain the right organisational ethos for working with children. They include: • Senior mana g ement commitment to the impo r tance of safeguarding and promoting c hildre n ’ s w elfare; • A clear statement of the a g ency ’ s responsibilities t ow ards c hildren a v ailable for all staff; • A clear line of accountability within the or g anisation for w ork on safeguarding and promoting the w elfare of c hildren; • Se r vice de v elopments that ta k e account of the need to safeguard and promote w elfare and is info r med, where appropriat e , b y the views of c hildren and families; • Staff training on safeguarding and promoting the w elfare of c hildren for all staff working with or in contact with children and families; • Safe rec r uitment procedures in place; • Effect i v e inte r -a g ency w orking to safeguard and promote the w elfare the c hildren, and • Effect i v e info r mation sharin g . 4. Section 55 is intended to achieve the same effect as section 11 of the Children Act 2004 (the 2004 Act) which places a similar dutyon other public organisations1. As well as providing a driver for improvement within the UK Border Agency, the duty will also help to improve inter-agency working in respect of children. Section 55 applies to the carrying out of the relevant functions anywhere in the UK. THE ROLE AND S TA TUS OF THIS G UIDANCE 5. This guidance is aimed at staff of the UK Border Agency and contractors when carrying out UK Border Agency functions. It setsout the key arrangements for safeguarding and promoting the welfare of children. The guidance is modelled on the guidance which supports section 11 of the 2004 Act2. It isin two parts. Part 1 describes the general arrangements to safeguard and promote the welfare of children which are likely to be common to all agencies covered by section11 and, in the case of the UK Border Agency, by section 55. Part 1 is intended to make clear how the work of the UK Border Agency fits 1 For the full list of bodies cove r ed by Section 11 see paragraph 1.1 of the guidance belo w . 2 Statutor y Guidance on making a r rangements to safegua r d and p r omote the welfa r e of child r en under section 11 of the Child r en Act 2004 updated Ma r ch 2007. Issued by DCSF and available at www.dcsf.gov.uk/ever ychildmatters/_download/?id=1372 into the wider arrangements, although not all of Part 1 is directly relevant to it. Part 2 sets out how those general arrangements apply specifically to the UK Border Agency.6. This guidance is issued under section 55 (3) and 55 (5) which requires any person exercising immigration, asylum, nationality and customs functions to have regard to theguidance given to them for the purpose by the Secretary of State. This means they must take this guidance into account and, if they decide to depa r t f r om it, h a v e clear r easons f or doing so. 7. Where private or voluntary organisations are commissioned to provide services on behalf of the UK Border Agency, the agreement under which the arrangements are made should require that the private or voluntary organisation concerned takes this guidanceinto account in the provision of those services and, if they decide to depart from it, haveclear reasons for doing so.8. The guidance does not replace any current operational instructions and should be read alongside them. T IME T ABLE 9. The commencement date for section 55 ofthe Borders, Citizenship and Immigration Act2009 was 2 November 2009. P A R T 1 UNDERS T ANDING THE DUTY TO MAKE ARRANGEMENTS TO SAFEGUARD AND PROMOTE THE WEL F ARE OF CHILDREN 1.1. Section 11 of the 2004 Act places a duty on key people and bodies in England to make arrangements to ensure that their functions are discharged with regard to the need to safeguard and promote the welfare of children. Section 28 of the Act requires similar bodies in Wales to do the same. Theapplication of this duty will vary according to the nature of each agency and its functions. The key people and bodies that are covered by the duty are: • local authoritie s , including district councils; • the police; • the probation se r vice; • NHS bodies(Strategic Health A uthoritie s , Designated Special Health A uthoritie s , Prima r y Care T r ust s , NHS T r ust s , Local Health Boards and NHS F oundation T r usts); • Or g anisations (cu r rently the Connexions Service) providing services under section114 of the Learning and Skills Act 2007;Border Agency in an Act that deals directly with UK Border Agency work. It therefore appears in section 55 of the Borders, Citizenship and Immigration Act 20093.1.3. The duty does not give the UK Border Agency any new functions, nor does it over- ride its existing functions. It does require the Agency to carry out its existing functionsin a way that takes into account the need to safeguard and promote the welfare of children.1.4. Safeguarding and promoting the welfare of children is defined in the guidance to section11 of the 2004 Act (section 28 in Wales) and in Working Together to Safeguard Children4 as: • protecting c hildren from maltreatment; • pre v enting impai r ment of c hildre n ’ s health or de v elopment (where health means ‘p h ysical or mental health’ and de v elopment means ‘p h ysical, intellectual, emotional, social or beh a vioural de v elopment’); • Y outh offending teams; • G o v e r nors / Directors of Prisons and Young Offender Institutions; • Directors of Secure T raining Centres; • T he British T ranspo r t P olic e . 1.2. The UK Border Agency functions are not devolved, unlike those of the bodies listedin the 2004 Act, and so the Government has chosen to apply the duty to safeguard and promote the welfare of children to the UK 3 In Scotland the legislative p r ovisions for p r otecting child r en and p r omoting their welfa r e a r e contained in the P r otection of Child r en ( Scotland ) Act 2007 and the Child r en ( Scotland ) Act 1995. The principles of co-operation and info r mation sharing between agencies in the safegua r ding of child r en a r e, howeve r , impor tant themes in the legislative framework and guidance gove r ning the deliver y of child r en’s ser vices in Nor the r n I r eland, whe r e the legislative p r ovisions a r e the Child r en (Nor the r n I r eland) O r der 1995, and the Safegua r ding V ulnerable G r oups (Nor the r n I r eland) O r der 2007. In both jurisdictions A r ea Child P r otection Committees a r e the means of p r oviding local p r ocedu r es and p r