Separation of a British child and Brazilian mother is a disproportionate interference with the mother’s human rights and child’s best interests

The case arose out of the Secretary of State’s (the Respondent) refusal to grant a Brazilian national (the Appellant) leave to remain on the basis of her family and private life in the UK with her British child.

The Respondent suggested that the Appellant leaves the UK and makes a new application to have a right to be in the UK, however the Appellant argued it would be an unreasonable interference with the best interests of her child.

The focus of the appeal therefore was whether there is a genuine and subsisting relationship between the Appellant and her British child, and whether it is unreasonable for the child to leave the UK.

Despite the fact that the child was born in Brazil and spent most of their life there, and the fact that the Appellant failed to demonstrate that there existed significant obstacles to their re-integration in Brazil, the Judge considered that it is important to consider the best interests of the child.

The Judge attached great weight to the fact that the British child needs to have contact with both parents and have no disruption to education, all of which would not be possible if the child had to return to Brazil, or if the Appellant had to leave the UK, even for a while. It was held that it was in the child’s best interest to stay in the UK to maintain relationship with their father.

As to the question of reasonableness of the requirement to leave the UK, the Judge held that it was not reasonable to require the child to leave the UK. It was highlighted that children are innocent in the choices their parents make [55]. This finding meant that the Appellant met the requirement of having a genuine and subsisting relationship with a child, and it would be unreasonable to expect the child to leave. This rendered the Respondent’s decision a disproportionate interference with the Appellant’s Article 8 rights.

This emphasises that the interests of British children are given considerable weight when determining the outcome of immigration matters of their parents.

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