27.02.2012

SC (Zimbabwe): families with children who have been in the UK for over eight years should stay put

The case of SC (Article 8 – in accordance with the law) Zimbabwe [2012] UKUT 00056 (IAC) concerned a policy of the Secretary of State not to return Zimbabwean nationals to Zimbabwe where they could not demonstrate loyalty to ZANU-PF, as set out in the guidance case of RN (Zimbabwe).  This moratorium on forced removals to Zimbabwe has since been lifted; however, the Upper Tribunal made a number of findings concerning the interference of Article 8 ECHR by contravening such policies with forced removals.

The Upper Tribunal held that a decision to remove a claimant is in accordance with the law, even if at the time of the decision there is a policy or practice not to enforce removals. However, it stated that although a decision to remove may be lawfully in principle, upon examination of the facts at the time, there may be reasons as to why removal should not be enforced in practice.  Therefore, it was held that where a decision was contrary to an established policy it may be contrary to the law, and thus incapable of justification under Article 8 ECHR.

This reasoning of the Upper Tribunal led to the most helpful finding of the case that, in the absence of strong countervailing factors, residence of 8 years in the United Kingdom with a child is likely to make removal at the end of that period not proportionate to the legitimate aims.  This finding resonates with the recent ruling in ZH (Tanzania), where it was found that the best interests of the child should be of paramount consideration when determining Article 8 ECHR.

Full text SC (Article 8 – in accordance with the law) Zimbabwe [2012] UKUT 00056 (IAC)

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