US v. UK Deportation Part 2: Children

Last month we compared US deportation law with the equivalent UK statutes. In that article, we alluded to the UK’s more generous approach regarding arrangements to safeguard and promote the welfare of the child in the Immigration and administrative removal system. With Trump’s latest policies on family separation, many will want to understand how the UK compares to the US in its treatment of children in the Immigration system.

Last week, we reported that the charity, Bail for Immigration Detainees, has represented over 155 parents who have been separated from their child this year. Despite statutory assurances to the contrary, the British government in practice is also responsible for the separation of families. But how does UK law on the separation of families compare to law in the United States?

Best interests of the child

In general, the UK Immigration system offers greater access to legal remedies for children and families in the Immigration system. According to Article 55 of the UK Borders Citizenship and Immigration Act of 2009, Immigration authorities are obliged to “safeguard and promote the welfare of children who are in the United Kingdom.” This is in part a reflection of the central tenet of the UN Convention on the Rights of the Child (UNCRC), the duty to protect the “best interests of the child.” Furthermore, the UK is bound by decisions by the European Court of Human Rights, which have emphasized this duty to protect children’s interests.

US Immigration law has no equivalent duty to safeguard the best interests or welfare of the child. The US is now the only country in the world that has failed to ratify the UNCRC, since Somalia and South Sudan ratified the Convention in 2015. Trump’s policies towards children may be draconian, but they are possible within a legal framework and Immigration system in which children are afforded few rights.

Preventing deportation or removal of a parent in the UK

In 2011, domestic case law in the UK established the importance of the “best interests” principle with the landmark ZH(Tanzania) ruling. In this case, the Supreme Court held that the best interests of the child – particularly, but not only, if they are a UK citizen – must be considered of paramount importance. The appellant, a Tanzanian citizen, was facing deportation due to unlawful presence and fraudulent Asylum applications. Yet the court granted her appeal based on the argument that it would not be in the best interests of her children to be separated from their mother.

Preventing deportation removal of a parent in the US

By contrast, it is very difficult to prevent the deportation or removal of a noncitizen parent if they have a child in the US. A parent facing deportation can apply for cancellation of removal if their deportation would cause “exceptional and extremely unusual hardship” upon their citizen or permanent resident child, as established in Matter of Monreal (2001). In Matter of Recinas (2002), the respondent satisfied the burden of proof: she was a single mother who provided sole support for six children – some of whom did not speak Spanish and had lived in the US their entire lives –, had limited financial resources, and no family in Mexico. In general, this extremely high burden of proof is only met when the child is seriously ill.

Granting residence: UK or EU citizen child

The UK is also bound to permit residence for noncitizen parents who have EU citizen children – at least for now. Two ground-breaking decisions in the CJEU, Zhu and Chen v. SSHD (2004) and Zambrano v. Office National de l’Emploi (2012) made it clear that a minor who is a national of an EU member state has the right to reside in the EU with their third-country parents. The first case granted Chinese parents the right to reside in the UK due to their Irish-born, and thus Irish citizen, child. In Zambrano, the Court held that Belgium must grant right of residence and a work permit to a Colombian couple who had two Belgian citizen children.

Granting residence: US citizen child

The process of gaining residence based on having a US citizen child is much more difficult than many – especially those who use the pejorative term “anchor babies” – would expect. If the parent of a US citizen child is undocumented, they must wait at least until their child is 21 years old before having any hope of being gaining lawful residence. When a child reaches the age of 21, they may petition for their parent to obtain a visa. The parent must leave the country and then re-enter, and if they have been unlawfully present at any time, they may face a further 3- or 10-year entry ban. All in all, it can take over 30 years simply to be eligible to start the process of gaining lawful residence.

Conclusion

These harsh rules may be in part a result of the US’ more generous laws on citizenship: birth right citizenship, or jus soli (right by soil) is enshrined in the US Constitution, meaning that anyone who is born in US soil is automatically a citizen. UK nationality law is instead based on jus sanguinis (right by blood) so citizenship is dependent on the status of your parents.

Yet the point remains that the US’ Immigration system is not designed with the best interests of children – some of the most vulnerable members of society – in mind. Although the UK system is far from perfect, it does have more legal remedies for families who simply want to stay together.

If you want to learn more about these remedies, or are concerned about any other Immigration matters, we can advise you. Call OTS Solicitors at 0203 959 9123