It may have taken twenty years but in 2009 the United Kingdom Government finally withdrew its reservation to the 989 United Nations Convention on the Rights of the Child (the Convention) in relation to immigration matters in 2009.
The Convention places a number of obligations in international law on the UK (and all other signatory States) to ensure that the best interests of children are a primary consideration when making decisions which affect them. The UK has previously given effect to its obligations through legislation such as the Children Act 1989 and policy documents such as Every Child Matters; however immigration matters were explicitly outside the scope of any such provisions. The
withdrawal of the reservation means that the best interests of children must now be a primary consideration in immigration matters as well as elsewhere. This new obligation has been transposed into UK law by virtue of the
Borders, Citizenship and Immigration Act 2009 and statutory guidance issued by the Secretary of State there under.
Subsequent case law, up to and including the UK Supreme Court, confirms the wide ranging and significant extent of the obligation. In effect, decisions of the UK Border Agency which adversely affect children in the UK (and arguably children elsewhere in the world) are un-lawful unless the best interests of those children have been made a primary consideration. It is useful to note that there is UK case law which confirms, in the style of a Ronseal advert, that the best interests of a child are precisely that – the best interests; a second best but supposedly adequate alternative is not sufficient.
Whilst the statutory guidance states that no new obligations are placed upon people exercising immigration functions, it is difficult to see how the best interests of a child can be a primary consideration in the process if the best interests of that child have not even been identified.
What the best interests of any particular child are will of course be specific to that child; indeed different children in the same case may well have different and possibly even incompatible best interests. Each case is uniquely fact specific. This article does not provide any form of legal advice for a particular case. We would advise you to contact a specialist immigration lawyer for specific advice with regard to your own particular matters.