When new Rules were published on 9th July 2012 an explanatory memorandum was also published and it stated that the new Immigration Rules reflect a duty on the Secretary of State under Section 55 of the Border Citizenship and Immigration Act 2009 to ensure that immigration decisions are made, having regard to the need to safeguard and promote the welfare of children who are in the UK. The question is: Do the Rules reflect and incorporate the children’s best interests. The Rules set out particular threshold and requirements which, if met may permit a child or a parent to come or stay in the UK. However, whether or not these thresholds and requirements are met in any particular case cannot of itself determine the child’s best interests because the interests of children who have been in the UK for less than seven years, are not taken into account and there are no guidelines as to how the Home Office will take matters such as the strength of children’s ties to the UK or their education and social development and the family and wider relationship into account.
Where the requirements of the Rules are not met, the Government position is that it may still be decided not to exclude the child or his or her parent from or require them to leave the UK. However, the Government also states that where the requirements are not met, it will only be exceptional cases that Article 8 or best interests of children will mean that the claim to come or stay in the UK will be successful. They argue that the duty upon the UK Border Agency, the Tribunals and the Courts to consider the best interests of children in Immigration cases is not reduced to nil by the new Rules and that an Order to exclude a child, will depend on the factual circumstances established in each case, whether the requirements in the Rules are met or not.
In the near future we will see whether the new Immigration Rules are compatible with the children’s best interests. Any fixed Rules is running the risk of not being compatible with children’s best interests because a fixed Rule cannot have regard to the wide variety of different factors that may be relevant in any particular case. It therefore remains important to put cases before the UK Border Agency asking them to make decisions outside the Rules where the best interests of children require this.