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.

It is also perhaps an example of the replacement of humane discretionary policies with ultimately weaker and sometimes illusory human rights protections. Although the removal of those minimum and minimal human rights standards now would leave us with nothing, basically.

The 2012 changes to the Immigration Rules

When the Immigration Rules were changed in July 2012 (Statement of Changes HC 194), 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 of the European Convention on Human Rights: Statement by the Home Office (13 June 2012) 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 HC 760 (see Sarah Pinder’s write up at the time here). The current test is at paragraph 276ADE(1)(iv) of the Immigration Rules:

is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK

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, so very few applications under this rule are currently succeeding.

Some provision is made in Appendix FM for the parents of a child to remain in the UK for 7 years, but only if one of the parents is British or settled (paragraph EX1) or if the parents are separated (family life as parent of a child route). There is no provision within the Immigration Rules where neither of the parents have any status and the parents are still together.

Statutory incorporation of the 7 year period

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.

The statutory provisions also incorporate the reasonableness test as well as requiring 7 years of residence.

In the case of Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) the President held that this subsection means what it says: there is no public interest in the removal of a person where the criteria are satisfied. 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

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.

It is also perhaps an example of the replacement of humane discretionary policies with ultimately weaker and sometimes illusory human rights protections. Although the removal of those minimum and minimal human rights standards now would leave us with nothing, basically.

The 2012 changes to the Immigration Rules

When the Immigration Rules were changed in July 2012 (Statement of Changes HC 194), 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 of the European Convention on Human Rights: Statement by the Home Office (13 June 2012) 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 HC 760 (see Sarah Pinder’s write up at the time here). The current test is at paragraph 276ADE(1)(iv) of the Immigration Rules:

is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK

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, so very few applications under this rule are currently succeeding.

Some provision is made in Appendix FM for the parents of a child to remain in the UK for 7 years, but only if one of the parents is British or settled (paragraph EX1) or if the parents are separated (family life as parent of a child route). There is no provision within the Immigration Rules where neither of the parents have any status and the parents are still together.

Statutory incorporation of the 7 year period

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.

The statutory provisions also incorporate the reasonableness test as well as requiring 7 years of residence.

In the case of Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) the President held that this subsection means what it says: there is no public interest in the removal of a person where the criteria are satisfied. 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.

Conclusion

Where a family with a child or children who have lived in the UK for 7 years or more apply for leave to remain on the basis of paragraph 276ADE(1)(iv), there is an increasingly strong argument that the applications should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child or children to have to start over with their life again in another country. The longer the child has lived in the UK, the stronger the case will be. Other factors working in an applicant’s favour would be lawful presence by the parents and residence as an older child.

An experienced immigration adviser would and should recommend that a person with lawful leave apply to extend their leave in a different category, however, if that is feasible. The Home Office seems hell bent on refusing such applications and the outcome of an appeal is always uncertain.

Credit;Freemovement