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Beyond Decisions About a Child and Decisions Affecting a Child in Deportation Cases

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Who should be central to the determination of deportation decisions: parent or child? Jonathan Collinson discusses the theoretical distinction which is drawn between decisions about a child and decisions affecting a child, and argues that this approach is problematic.

Image courtesy of interviewee. May 21, 2024

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This video video discusses research on foreign national offenders and their children, emphasizing the legal and societal challenges surrounding deportation after prison sentences, particularly in the UK. It highlights that a considerable portion of the British public believes that offenders with children should not be deported, even after serious crimes. International law, including the United Nations Convention on the Rights of the Child and the European Convention on Human Rights, stresses that the best interests of the child should be a primary consideration in such cases.

The author points out the tension between legal frameworks that focus on the rights of the child versus those that prioritize the offense committed by the parent. They propose a two-step process for evaluating deportation cases: first, assessing whether the deportation aligns with the child’s best interests; and second, allowing the government to argue the necessity of deportation for public safety, but only if it convincingly overrides the child’s welfare.

The author critiques existing frameworks for not adequately considering the broader aspects of a child’s well-being beyond just their relationship with the parent. They advocate for prioritizing the child’s interests in legal decisions and suggest further research to find a fair balance between the child's rights and the state's justification for deportation.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

00:00.065 --> 00:02.765
My research often focuses on foreign national offenders,

00:02.785 --> 00:03.965
and particularly on their children.

00:04.745 --> 00:07.285
The law is geared towards trying to ensure that

00:07.285 --> 00:09.885
as few individuals as possible will have a right

00:09.885 --> 00:13.085
to remain in the UK after a prison sentence, regardless

00:13.185 --> 00:15.525
of their personal and family circumstances here in the uk.

00:16.465 --> 00:17.925
But the, the, this isn't

00:17.925 --> 00:20.285
what most people in the UK think should happen.

00:20.945 --> 00:24.365
In a u of poll on this, 42% of British people said

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that foreign national offenders

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who have a child in the UK should not be deported even when

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they've committed a serious offense

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with only 37% said they ought to be deported.

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And 21% no when it's a minor offense,

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a massive 64% of British people think that someone

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with a child should not be deported

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and only 18% think that they should.

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So international law seems to agree with that proposition.

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Article three of the United Nations Convention on the Rights

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of the Child, which the UK has signed up to, requires

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that in all actions concerning children, the best interest

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of the child shall be a primary consideration.

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This includes deportation decisions,

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which is the decision whether

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or not to support a parent impacts the child article later.

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The European Convention on Human Rights

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protects the right to family life.

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An individual's family life can only be interfered with

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by the state for serious reasons, including

01:17.305 --> 01:19.085
to prevent disorder and crime.

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These two ideas have been written into UK law agreed to

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by the UK Parliament, the best interest

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of the charge in immigration law to be found in

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what we call the Section 55 duty,

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and that's in the Border Citizenship and Immigration Act.

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And Article eight ECHR is written into the Human Rights Act.

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UK courts must therefore apply both of these principles,

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and pieces of legislation in deportation cases

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because they are UK law.

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The difficulty the courts

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and academic lawyers have faced when trying

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to apply these two different pieces of legislation is

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that it's really difficult to combine them in a

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single decision making process.

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I described this as like being, like trying to get oil

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and water to mix, and they seem

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to require two different ways

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of thinking about deportation decisions.

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One that's focused solely on the child

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and one that takes its starting point the

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adult, and they're offended.

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One of the ways in which legal theorists have suggested

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to deal with this issue is to distinguish

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between decisions which are about a child,

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and decisions which affect a child.

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Decisions about a child are ones in which the child is at

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the center of our assessment of what should happen.

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And classic examples include decisions about

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where a child ought to live after divorce,

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or whether medical treatment should continue or be stopped.

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In these kind of cases, we say that the person

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who primarily feels the impact of the decision is the child.

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And so the decision should of course, be considered as one

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that is about the child

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and what is in the best in the child's best interests

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or then to prevail.

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Therefore, in the case of decisions directly about a child,

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the focus of the decision makers should be on considering

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and discovering the, solution

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that's the best outcome for the child. But in contrast,

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In decisions which are said

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to only affect a child indirectly, the focus

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of the decision maker should be on reaching the best

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solution to the issue to be decided even if

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what is best overall is not in the

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best interest of the child.

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And one of the examples of a decision which indirectly

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affects a child that is being used in by some writers,

03:17.905 --> 03:20.565
as an example of article, articulate family life,

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in deportation cases,

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and they've suggested a two-step assessment.

03:26.035 --> 03:29.005
Step one, they suggest that the value of the family life

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of the foreign national offender

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and their child ought

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to be weighed against the seriousness of the offense.

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In step two, if the outcome from step one was then

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so completely contrary to the best interest of the child,

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presumably a decision to deport the parent,

03:43.835 --> 03:45.885
then the best interest of the child could operate

03:46.145 --> 03:47.765
to prevent the deportation.

03:48.985 --> 03:51.245
So I wrote an article Beyond Decisions about a child

03:51.265 --> 03:52.765
and Decisions affecting a child,

03:53.095 --> 03:55.485
which challenged the practical application

03:55.485 --> 03:58.085
of this distinction and the suggested process

03:58.115 --> 04:01.605
that goes along with it to where, when that is applied

04:01.665 --> 04:02.765
to deportation cases.

04:03.625 --> 04:05.165
My challenge had two elements.

04:05.995 --> 04:08.165
Firstly, the considering the right to family life

04:08.165 --> 04:11.325
between parents and child doesn't include consideration

04:11.505 --> 04:13.125
of all the factors that make up

04:13.285 --> 04:14.365
the best interest of the child.

04:15.505 --> 04:17.965
The best interest of the child includes things like their,

04:17.965 --> 04:21.085
their education, their health, their future opportunities,

04:21.505 --> 04:22.605
and the child's relationship

04:22.605 --> 04:24.005
with friends and extended family.

04:24.905 --> 04:26.285
The best interest of the child is simply

04:26.345 --> 04:27.885
so much bigger than just their

04:27.885 --> 04:29.005
relationship with their parents.

04:30.115 --> 04:32.255
So my first objection is that in that first step,

04:32.315 --> 04:35.215
if we take Article eight to mean more than just family life

04:35.355 --> 04:36.855
and include all of those aspects

04:36.855 --> 04:38.335
that made up the best interest of the child,

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then the proposed step two is redundant,

04:41.195 --> 04:42.535
but is it simply asked in the

04:42.535 --> 04:43.655
same question in a different way?

04:44.635 --> 04:46.575
On the other hand, if the suggestion is, is that is

04:46.635 --> 04:49.535
as it appears to consider the family life

04:49.835 --> 04:52.655
and then the best interest of the child as an exception

04:52.655 --> 04:55.135
to deportation, then it engages

04:55.135 --> 04:57.015
for an academic called Marie Benedict.

04:57.165 --> 05:00.735
Debo calls a problematic logical inversion in

05:00.735 --> 05:01.815
human rights reasoning.

05:03.045 --> 05:05.575
Debo identified this problematic logical inversion in the

05:05.575 --> 05:07.575
reasoning in employed by the European cause

05:07.575 --> 05:10.895
of human rights in cases related to the rights of migrants.

05:12.135 --> 05:14.615
Normally, human rights are a fixed starting point.

05:15.115 --> 05:17.655
We all have various human rights as the basic function

05:17.655 --> 05:19.935
of being human, and this is the starting point.

05:20.715 --> 05:23.805
Sometimes there are human rights have to be limited in order

05:23.805 --> 05:26.045
for society to function and to protect others.

05:26.745 --> 05:29.165
So for example, I don't have an absolute freedom

05:29.185 --> 05:31.965
of expression because I could make false accusations

05:32.185 --> 05:34.685
or lie in my business dealings without consequence.

05:35.905 --> 05:37.645
The key, though, from the perspective

05:37.665 --> 05:40.045
of making decisions about human rights is

05:40.045 --> 05:41.485
that the human right comes first

05:42.185 --> 05:45.245
and then the government must justify why it's ieg legitimate

05:45.265 --> 05:48.805
and proportionate in, interference.

05:49.305 --> 05:50.925
Um, with my human rights,

05:52.135 --> 05:54.475
the problematic logical inversion in human rights cases

05:54.525 --> 05:56.595
concerning migrants is that the

05:56.755 --> 05:58.685
European Court seems to start with the proposition

05:58.685 --> 06:01.365
that states have the right to deport people,

06:01.705 --> 06:03.925
and that it is the migrant who then has to argue

06:03.925 --> 06:05.485
that their human rights are more important.

06:06.505 --> 06:08.205
And that is what I argue with John on with this.

06:08.205 --> 06:11.485
There there's two step, two step solution to treat

06:11.505 --> 06:14.005
to treating deportation cases as cases

06:14.035 --> 06:16.365
that affect children rather than being about children,

06:16.985 --> 06:19.965
the suggested two steps are to decide on deportation

06:20.225 --> 06:21.645
and then see if the best interest

06:21.645 --> 06:23.925
of the child is important enough to override that.

06:24.505 --> 06:26.405
And that's the problematic logical inversion.

06:26.875 --> 06:28.805
It's not how human rights are supposed to work

06:29.065 --> 06:31.925
to provide any form of me meaningful legal protection,

06:32.175 --> 06:34.165
especially to vulnerable groups like children.

06:34.945 --> 06:37.685
My article finished by suggesting a different two-step

06:37.685 --> 06:39.965
process, one in which we start

06:40.035 --> 06:41.445
with the best interest of the child.

06:42.125 --> 06:43.625
Is it in the best interest of the child

06:43.855 --> 06:45.625
that their foreign national parent,

06:45.625 --> 06:48.385
foreign national parent be deported as a consequence

06:48.385 --> 06:49.625
of their offending or not?

06:50.645 --> 06:53.185
In some cases, such as the case of child abuse,

06:53.455 --> 06:55.305
then the deportation may well be in the

06:55.305 --> 06:56.345
best interest of the child.

06:56.935 --> 06:58.065
However, in most cases,

06:58.205 --> 07:01.025
the child is gonna be better off having their parents be

07:01.025 --> 07:02.745
able to stay in the UK so

07:02.745 --> 07:04.625
that they can maintain their family relationships

07:04.955 --> 07:06.665
after the offender sentence is served.

07:07.405 --> 07:09.145
And after all, this is what we expect to happen

07:09.485 --> 07:11.345
to UK citizens who offend.

07:11.845 --> 07:14.145
We let them outta prison at the end of their sentence

07:14.445 --> 07:16.105
to be able to put back together their

07:16.105 --> 07:17.345
lives with their families.

07:18.405 --> 07:21.105
The second step would then basically allow the government

07:21.105 --> 07:23.905
to argue that the deportation of, of the parents is

07:23.925 --> 07:25.905
so important in preventing prime

07:25.905 --> 07:28.145
and disorder, that it overrides the

07:28.145 --> 07:29.505
best interest of their child.

07:30.205 --> 07:33.265
It will be in some cases and in, and will not be in others.

07:34.445 --> 07:37.345
The point is to restore the importance of the human rights

07:37.345 --> 07:38.545
of the of, of the child.

07:38.885 --> 07:41.025
The right to have their best interests is the primary

07:41.465 --> 07:43.545
consideration in decisions concerning them,

07:43.545 --> 07:45.145
which means considering them first.

07:45.445 --> 07:49.505
And as the our, our primary, primary aim.

07:50.955 --> 07:53.895
As for future research, we need to then work out how

07:53.895 --> 07:56.215
to fairly decide between the rights of the child

07:56.515 --> 07:58.735
and the state's arguments for deportation,

07:58.905 --> 08:01.615
especially when such cases can provoke such heightened

08:01.615 --> 08:02.455
emotional responses.

00:00 - My research often focuses on foreign national offenders, and particularly on their children. The law is geared towards trying to ensure that as few individuals as possible will have a right to remain in the UK after a prison sentence, regardless of their personal and family circumstances here in the uk.

00:16 - But the, the, this isn't what most people in the UK think should happen. In a u of poll on this, 42% of British people said that foreign national offenders who have a child in the UK should not be deported even when they've committed a serious offense with only 37% said they ought to be deported. And 21% no when it's a minor offense, a massive 64% of British people think that someone with a child should not be deported

00:42 - and only 18% think that they should. So international law seems to agree with that proposition. Article three of the United Nations Convention on the Rights of the Child, which the UK has signed up to, requires that in all actions concerning children, the best interest of the child shall be a primary consideration. This includes deportation decisions, which is the decision whether or not to support a parent impacts the child article later. The European Convention on Human Rights

01:09 - protects the right to family life. An individual's family life can only be interfered with by the state for serious reasons, including to prevent disorder and crime. These two ideas have been written into UK law agreed to by the UK Parliament, the best interest of the charge in immigration law to be found in what we call the Section 55 duty, and that's in the Border Citizenship and Immigration Act. And Article eight ECHR is written into the Human Rights Act.

01:37 - UK courts must therefore apply both of these principles, and pieces of legislation in deportation cases because they are UK law. The difficulty the courts and academic lawyers have faced when trying to apply these two different pieces of legislation is that it's really difficult to combine them in a single decision making process. I described this as like being, like trying to get oil and water to mix, and they seem

02:01 - to require two different ways of thinking about deportation decisions. One that's focused solely on the child and one that takes its starting point the adult, and they're offended. One of the ways in which legal theorists have suggested to deal with this issue is to distinguish between decisions which are about a child, and decisions which affect a child. Decisions about a child are ones in which the child is at

02:23 - the center of our assessment of what should happen. And classic examples include decisions about where a child ought to live after divorce, or whether medical treatment should continue or be stopped. In these kind of cases, we say that the person who primarily feels the impact of the decision is the child. And so the decision should of course, be considered as one that is about the child and what is in the best in the child's best interests or then to prevail.

02:47 - Therefore, in the case of decisions directly about a child, the focus of the decision makers should be on considering and discovering the, solution that's the best outcome for the child. But in contrast, In decisions which are said to only affect a child indirectly, the focus of the decision maker should be on reaching the best solution to the issue to be decided even if what is best overall is not in the best interest of the child.

03:12 - And one of the examples of a decision which indirectly affects a child that is being used in by some writers, as an example of article, articulate family life, in deportation cases, and they've suggested a two-step assessment. Step one, they suggest that the value of the family life of the foreign national offender and their child ought to be weighed against the seriousness of the offense. In step two, if the outcome from step one was then

03:38 - so completely contrary to the best interest of the child, presumably a decision to deport the parent, then the best interest of the child could operate to prevent the deportation. So I wrote an article Beyond Decisions about a child and Decisions affecting a child, which challenged the practical application of this distinction and the suggested process that goes along with it to where, when that is applied to deportation cases.

04:03 - My challenge had two elements. Firstly, the considering the right to family life between parents and child doesn't include consideration of all the factors that make up the best interest of the child. The best interest of the child includes things like their, their education, their health, their future opportunities, and the child's relationship with friends and extended family. The best interest of the child is simply

04:26 - so much bigger than just their relationship with their parents. So my first objection is that in that first step, if we take Article eight to mean more than just family life and include all of those aspects that made up the best interest of the child, then the proposed step two is redundant, but is it simply asked in the same question in a different way? On the other hand, if the suggestion is, is that is

04:46 - as it appears to consider the family life and then the best interest of the child as an exception to deportation, then it engages for an academic called Marie Benedict. Debo calls a problematic logical inversion in human rights reasoning. Debo identified this problematic logical inversion in the reasoning in employed by the European cause of human rights in cases related to the rights of migrants. Normally, human rights are a fixed starting point.

05:15 - We all have various human rights as the basic function of being human, and this is the starting point. Sometimes there are human rights have to be limited in order for society to function and to protect others. So for example, I don't have an absolute freedom of expression because I could make false accusations or lie in my business dealings without consequence. The key, though, from the perspective of making decisions about human rights is that the human right comes first

05:42 - and then the government must justify why it's ieg legitimate and proportionate in, interference. with my human rights, the problematic logical inversion in human rights cases concerning migrants is that the European Court seems to start with the proposition that states have the right to deport people, and that it is the migrant who then has to argue that their human rights are more important. And that is what I argue with John on with this.

06:08 - There there's two step, two step solution to treat to treating deportation cases as cases that affect children rather than being about children, the suggested two steps are to decide on deportation and then see if the best interest of the child is important enough to override that. And that's the problematic logical inversion. It's not how human rights are supposed to work to provide any form of me meaningful legal protection, especially to vulnerable groups like children.

06:34 - My article finished by suggesting a different two-step process, one in which we start with the best interest of the child. Is it in the best interest of the child that their foreign national parent, foreign national parent be deported as a consequence of their offending or not? In some cases, such as the case of child abuse, then the deportation may well be in the best interest of the child.

06:56 - However, in most cases, the child is gonna be better off having their parents be able to stay in the UK so that they can maintain their family relationships after the offender sentence is served. And after all, this is what we expect to happen to UK citizens who offend. We let them outta prison at the end of their sentence to be able to put back together their lives with their families.

07:18 - The second step would then basically allow the government to argue that the deportation of, of the parents is so important in preventing prime and disorder, that it overrides the best interest of their child. It will be in some cases and in, and will not be in others. The point is to restore the importance of the human rights of the of, of the child. The right to have their best interests is the primary consideration in decisions concerning them,

07:43 - which means considering them first. And as the our, our primary, primary aim. As for future research, we need to then work out how to fairly decide between the rights of the child and the state's arguments for deportation, especially when such cases can provoke such heightened emotional responses.

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