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The Court of Appeal has upheld the decision of the Upper Tribunal, requiring the Home Office to return a 5 year old child to the UK with his mother after failing to properly consider his best interests before they were removed to Nigeria. The Secretary of State for the Home Department had sought leave to appeal the relief granted by the Upper Tribunal, but permission was refused by the Court of Appeal.

The Upper Tribunal decision has potentially far-reaching consequences, providing important guidance on the application of the best interests principle in the immigration context.

The Upper Tribunal concluded that the Home Office had failed to consider the implications for the child given his specific vulnerabilities and the risk of harm following removal, and by not doing so had failed to have regard to his best interests as a primary consideration as required under section 55 of the Borders, Citizenship and Immigration Act 2009, which implements Article 3 of the UN Convention on the Rights of the Child.  The Upper Tribunal accordingly quashed the Home Office decision to remove the child, and ordered his return to the UK in order that a lawful assessment of his best interests be undertaken.
The Office of the Children’s Commissioner intervened in the case in both the Upper Tribunal and Court of Appeal to assist the court in considering the principles that applied in cases involving dependent children in asylum and human rights protection claims and the obligations under section 55.

Kate Gallafent QC and Jason Pobjoy represented the OCC in the Court of Appeal.

Kate Gallafent QC represented the OCC in the Upper Tribunal.

Monica Carss-Frisk QC and Jason Pobjoy represented the OCC at an interim relief hearing.

Kate, Monica and Jason were instructed by Freshfields Brukhaus Deringer, which, along with Counsel, acted for the OCC pro bono.