Can children and parents apply to remain after seven years residence? By Colin Yeo

From a child’s perspective, seven years of residence in the UK can be literally a lifetime. It may be the sum of all the child’s experience and the UK may be the only home they know in any meaningful sense. On top of that, children do not make their own decisions about moving homes and countries. To put it another way, whilst adults make informed choices about where to live, children have to cope with the consequences of other people’s choices.

Paragraph 276ADE of the Immigration Rules provides that a child may be granted leave to remain on the basis of their Article 8 right to a private life where:

• They are under 18

• They have lived continuously in the UK for at least seven years (discounting any periods of imprisonment)

• It wouldn’t be reasonable to expect them to leave the UK.

Where the parents have no separate right to remain in the UK under the Immigration Rules — which is in almost all of these seven year cases — then the Home Office almost always decides that it would be reasonable for the child to accompany his or her parents abroad back to the country of nationality.

In this post, we will take a look at the legal background, applications within and outside the Rules for parents of such children, and the – fairly messy – case law in this area. A lot hinges on the word “reasonable”.

The old seven year policy and the 2012 changes to the Immigration Rules

Until 2008 children who resided in the UK for seven years would permitted to remain under a Home Office policy called DP5/96, as would their parents. There were certain public interest “escape” clauses for the Home Office – if the parents had deliberately gone to ground, committed offences or similar – but most applications under this policy would succeed.

The policy existed for many, many years and forms an important context to later discussion of the same issue. It was considered extensively in the Court of Appeal case of NF (Ghana) v SSHD [2008] EWCA Civ 906.

There was a gap between 2008 and 2012 when there was no policy or legal guidance in place on what length of residence by a child might render removal of the child disproportionate. When the Immigration Rules were changed in July 2012 (statement of changes HC194), seven years of residence by a child was formally incorporated into the Rules as a sufficient period to justify continued residence by the child and parents. The explanatory notes accompanying that particular change (paragraph 7.6) stated that:

The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the rules set at at least the last seven years, subject to countervailing factors.

The Grounds of compatibility with Article 8 statement that accompanied the new rules went even further at paragraph 27:

The Rules deal clearly with how to treat British citizen and other children in cases where we would otherwise intend to remove their parent(s) and how countervailing factors should weigh in the decision. There are some circumstances where children may be allowed to stay on a permanent or temporary basis on best interests grounds. The key test for remaining on a permanent basis is around the length of continuous residence of a child in the UK – which we have set at 7 years, subject to countervailing factors. We consider that a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child. A period of 7 years also echoes a previous policy (known as DP5/96) under which children who had accumulated 7 years’ continuous residence in the UK were not deported, which is still referenced by the Courts on occasion. In policy terms, we would not propose a period of less than 7 years as this would enable migrants who entered the UK on a temporary route (for example a route limited to 5 years in the UK) to qualify for settlement if they had brought children with them. The changes are designed to bring consistency and transparency to decision-making.

In December 2012, though, a new criterion of whether it would be reasonable for the child to leave the UK was added by statement of changes HC760 (see Sarah Pinder’s write–up at the time).

The changes to the Immigration Rules in 2012 were followed by changes to primary legislation in the form of the Immigration Act 2014. This Act introduced a new Part 5A into the Nationality, Immigration and Asylum Act 2002, which imposes a duty on judges to “have regard to” certain considerations when dealing with Article 8 immigration cases. One of these considerations is section 117B(6), which provides:

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

A “qualifying child” is defined at section 117D(1) as a British citizen child or one who “has lived in the United Kingdom for a continuous period of seven years or more”.

Where the criteria in section 117B(6) are satisfied and it would not be reasonable to expect the child to leave the UK, Parliament has here legislated that there is no public interest in the removal of the qualifying parent: MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705 at paragraph 17. Proportionality is classically described as a balancing exercise, and where section 117B(6) applies one side of the scales is empty and such a person should always therefore succeed.

When is it “reasonable” for a child to have to leave?

The Home Office position in almost all cases seems to be that it would be reasonable for a child to accompany his or her parents abroad. Its guidance sets out relevant factors for caseworkers making that decision. These include:

• Whether the child would be leaving the UK with their parent(s) — “it is generally the case that it is in a child’s best interests to remain with their parent(s)”.

• The extent of wider family ties in the UK.

• Whether the child is likely to be able to (re)integrate readily into life in another country, relevant factors including the extent of any social, cultural, linguistic ties, access to citizenship, and whether the child has ever attended school in that country.

• Whether removal would give rise to a significant risk to the child’s health.

• Country specific information.

The Supreme Court, in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53, considered the question of reasonableness and the factors that a court is entitled to take into account when applying the reasonableness test. The list of relevant factors in the Home Office’s guidance was described by the court as “wholly appropriate and sound in law”.

Immigration Form Checking

Look over your application before you send.

That said, the suggestion within the guidance that section 117B(6) does not apply where the decision would not require the child’s departure from the UK (for instance where there is another parent or carer in the UK) was recently ruled unlawful by the  Upper Tribunal in SR (subsisting parental relationship – s117B(6)) Pakistan 2018 UKUT 3345 (IAC). See our previous post for further information. So, although the list of relevant factors at pages 74 to 76 of the guidance has been endorsed at the highest level, other sections of the guidance should be approached with caution.

The Supreme Court held that the “reasonableness” assessment in paragraph 276ADE(1)(iv) and 117B(6) is “directed solely to the position of the child”. In other words, the conduct of the parent is irrelevant to that assessment of the impact on the child.

However the immigration history of the parents may be “indirectly material”. Before embarking on consideration of whether it would be reasonable for the child to leave the UK, one must ask ‘Why would the child be expected to leave the UK?’ If the answer is that the parents have no right to remain in the UK then the Supreme Court says that this is “inevitably relevant” to the reasonableness assessment. The “ultimate question” is ‘Would it be reasonable to expect the child to follow the parent with no right to remain to the country of origin?’

The extent to which the Supreme Court’s decision has overruled the earlier Court of Appeal case of MA (Pakistan) is unclear. Of particular interest is whether it remains the case, that the fact a child has lived in the UK for seven years must

be given significant weight when carrying out the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.

The suggestion that the “starting point” in a case where a child has lived in the UK for seven years should be to grant leave was very helpful to those making applications on this basis, and was endorsed by the Upper Tribunal in MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 88 (IAC) (see below). It remains to be seen to what extent this principle has survived the Supreme Court’s decision in KO (Nigeria).

The Supreme Court also re-iterated the importance of the best interest of the child and the principles espoused in Zoumbas and ZH (Tanzania):

I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the “best interests” of children, including the principle that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74…)

Decision makers should be approaching cases involving children who are either British or who have lived in the UK for seven years very carefully. The courts will be anxious to ensure that, when taking into account a parent’s immigration history as an inevitably relevant indirectly material factor, officials are not blaming the child for the conduct of his or her parent and are still adopting a child centred approach. It is a delicate balance.

So what do you do if you are a parent with a qualifying “seven-year child”?

Lone parent

The rules for leave to remain on the basis of a parental relationship of a seven year child with leave to remain are set out in Appendix FM. The accompanying guidance clearly states that the parent routes are for a “single parent applicant” who:

• “has sole parental responsibility for their child

• does not live with the child (who lives with a parent or carer who is a British citizen or settled here), but they have direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK [or]

• is the parent with whom the child normally lives, rather than the child’s other parent who is British or settled”

Need affordable legal advice?

Arrange a video chat at a time that suits you.

If the applicant has a genuine and subsisting parental relationship with a qualifying child (i.e. British or with 7 years’ residence), and it would not be reasonable to expect that child to leave the UK,  then paragraph EX.1 applies. This exempts applicants from having to satisfy the English language, immigration status, and maintenance and accommodation requirements. The parent will still need to meet the relationship and suitability requirements in order to be granted leave to remain within the Rules on the ten year track to settlement.

As an aside, if the parent is later able to meet the other requirements, they could apply to switch onto the five year track to settlement after they are granted leave.

Two parents

There is no specific provision within the Rules to grant leave to the parents of a “seven years child” where neither of the parents have status and the parents are still together. However, depending on the circumstances, it may be appropriate for the parents to apply for leave outside the Rules.

A decision-maker must examine a case both within and outside the remit of the Rules. This was confirmed by Lord Reed in R (Agyarko and Ikuga) v SSHD [2017] UKSC 11 and recently re-iterated by Lord Wilson in Rhuppiah v SSHD [2018] UKSC 58.

Paragraphs GEN.1.10 and GEN.1.11 [of Appendix FM] both make provision for situations “where an applicant does not meet the requirements of this Appendix … but the decision-maker grants entry clearance or leave to enter or remain outside the Rules on Article 8 grounds. (Agyarko, paragraph 14)

A claim will succeed outside the rules if it is “exceptional”. Lord Reed went on to say that:

The Respondent’s instructions stated: “exceptional does not mean ‘unusual’ or ‘unique’” and concluded that, even in a case which would not succeed by reference to the Rules, “leave to remain can nevertheless be granted outside the Rules in ‘exceptional circumstances’, in accordance with the Instructions, that is to say, in “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate, then leave will be granted outside the rules on the basis that there are ‘exceptional circumstances’.

In PD and Others (Article 8 : conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC), the Upper Tribunal considered the approach to cases with multiple applications from family members, specifically parents with a child or children with seven years of residence. The background was in some ways typical of this type of case.

The parents had entered the UK as a student and student dependent in 2005. Their child, then aged three, had come with them. They had all remained lawfully until 2010 but had overstayed since then. The child was now aged 14 and had lived for 11 years in the UK. Nevertheless, an application for leave to remain on the basis of seven years of residence had been rejected by the Home Office and an initial appeal had been dismissed.

Three potential outcomes were identified:

1 All appeals dismissed and the family leaves the UK together.

2 Child’s appeal allowed but appeals of parents dismissed, child remains in UK without parents.

3 All appeals allowed and family remains in UK together.

The second of these options was quickly dismissed as totally unrealistic. The Upper Tribunal carefully considered the other two possibilities and came down in favour of all the appeals being allowed. The reasoning was essentially that the best interests of the child are clearly that he should remain in the UK with his parents, that it would not be reasonable to expect him to leave the UK due to his length of residence and high degree of social and cultural integration, and that by virtue of section 117B(6) there is no public interest in removal of the parents.

The former President held that it would be “artificial”, “unrealistic”, “a fiction”, “imaginary”, “surreal”, in breach of public law, in breach of the section 55 duty to have regard to the welfare of children and in breach of Article 8 itself to treat the cases of the family members entirely separately from one another:

It is the very essence of Article 8 ECHR claims based on the family life dimension of this Convention provision that there are relationships, bonds and ties joining together the members of the family unit in question. In circumstances where the claims of several family members coincide, it would be artificial and unrealistic to determine them on their individual merits, in a rigid sequence and in insulated packages, without reference to the other claims. [21]

On the interpretation of the word “reasonable” the UT commented:

We remind ourselves that the test to be applied is that of reasonableness. Other legal tests which have gained much currency in this sphere during recent years – insurmountable obstacles, exceptional circumstances, very compelling factors – have no application in the exercise we are performing. Self-evidently, the test of reasonableness poses a less exacting and demanding threshold than that posed by the other tests mentioned.

Applying this approach, the President reminded us that all the relevant considerations have to be taken into account:

We consider that the application of the reasonableness test involves a balance of all material facts and considerations. The application of this test will invariably be intensely fact sensitive, see EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, at [7] – [12], per Lord Bingham. Ultimately, the factors to which we give determinative weight are the length of the third Appellant’s residence in the United Kingdom (some 11 years), which has spanned three quarters of his life; his deep immersion in all aspects of life in this country; the critical stage of his personal and educational development which has been reached; his minimal connections with his country of origin; and the likelihood that he will make a useful contribution to United Kingdom society.

It was refreshing to see weight being given to the public interest in favour of allowing a child to settle in the UK.

The President gave due adverse weight to the unlawful overstay of the parents but observed that “a child’s best interests should not be compromised on account of the misdemeanours of its parents”.

This issue was considered again by the Upper Tribunal recently in the case of MT and ET [2018] UKUT 88 (IAC), where the Tribunal reiterated that powerful reasons are needed to remove a child after seven years. Nath has covered that decision in this post.

Where a family with a child who has lived in the UK for seven years or more applies for leave to remain, applications should be “front loaded” with evidence that demonstrates the family’s residence, set out the full extent of the child’s life in and ties to the UK, the extent of the family’s integration, the impact of removal on the child, and the difficulties faced by the child if they had to start their life over in another country. The longer the child has lived in the UK, the stronger the case will be.

Citizenship after ten years

It is crucial to remember that a person (including someone over 18) is entitled to register as a British citizen under section 1(4) of the British Nationality Act 1981 if they:

• Are born in the UK

• Spend the first 10 years of their life here (with absences of no more than 90 days in each year)

• Are of good character.

This was introduced to allow children with strong ties to the UK to be registered here, regardless of the status of their parents. The policy reason was noted by Parliament: “We feel that, after the passage of time, those children will be so deeply rooted in this country that it would be harsh to deprive them of citizenship”.

Once a child becomes British, the argument that it would not be reasonable to expect them to leave the UK becomes all the more compelling.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: