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Can children and parents apply to remain after seven years’ residence?

Can children and parents apply to remain after seven years’ residence?

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(1)(iv) of the Immigration Rules provides that a child may be granted permission to stay 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 nearly 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 back to the country of nationality.

Legal background

Paragraph 276ADE(1) itself states:

The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(iv) 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.

There is also section 117B(6) of the Nationality, Immigration and Asylum Act 2002, which states:

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 in section 117D(1) as one who is under 18 and either a British citizen or one who “has lived in the United Kingdom for a continuous period of seven years”.

In an immigration appeal, where someone meets the test set by section 117B(6), their appeal should always succeed as it would be disproportionate under Article 8 to remove them. 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?

Home Office guidance states that the “starting point is that we would not normally expect a qualifying child to leave the UK” and that if the qualifying child is not expected to leave then neither are the parents.

But this is swiftly qualified: “if a child’s parents are both expected to leave the UK, the child is normally expected to leave with them, unless there is evidence that it would not be reasonable”.

The guidance then gives a series of examples of when it might be reasonable for a qualifying child to leave the UK with a parent or carer:

  • the parent or parents, or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country
  • there is nothing in any country specific information, including as contained in relevant country information which suggests that relocation would be unreasonable
  • the parent or parents or child have existing family, social, or cultural ties with the country…
  • removal would not give rise to a significant risk to the child’s health
  • there are no other specific factors raised by or on behalf of the child

Clearly, demonstrating that it is unreasonable to expect a child to leave, particularly where neither parent has a right to live in the UK, requires an applicant to meet a fairly high threshold.

Case law on reasonableness

Because so much hinges on the interpretation of “reasonable”, a large body of case law has resulted from attempts to define it.

Test applies even if child would not leave the UK

It is possible for it to be unreasonable to remove a qualifying child, bringing the parents within section 117B(6), even if in reality the child would not actually leave the UK either way. That was established by the case of AB (Jamaica) & Anor [2019] EWCA Civ 661, endorsing the finding in SR (Subsisting Parental Relationship – s117B(6)) Pakistan [2018] UKUT 334 (IAC).

This might be the case where only one parent is applying for permission to stay, whereas the other parent is British or otherwise has permission to stay, and the child would remain in the UK with that parent even if their other parent is removed. In effect, this means that the parent should not be refused permission on the sole ground that the relevant child would remain in the UK even if they are removed. See Iain’s previous post on this topic.

The position of the parents is (indirectly) relevant

The question at the heart of this issue is whether, in considering whether it is reasonable to expect a child to leave the UK, the courts should favour a “narrower” approach (focusing only on factors relating to the child) or a “wider” approach (looking at other matters such as the conduct and immigration history of the parents).

It is fair to say that there has been a lot of confusion on this point as a result of somewhat contradictory decisions, as alluded to by the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53 (“there have been significant differences of approach and conflicting decisions at each level”).

The court held in that case that it is:

… inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain.

This finding has generated much debate among lawyers, given that it is not entirely clear what it means for the immigration status of the parents to be “indirectly material” to the reasonableness test. It may be helpful to look at the way the Supreme Court decided one of the joined appeals before it in KO (Nigeria), in which the parents were allegedly involved in a scam that involved relying on fake degrees.

Upholding the Upper Tribunal’s dismissal of their appeals, Lord Carnwath held:

The parents’ conduct was relevant in that it meant that they had to leave the country. As I have explained (para 18 above), it was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain here. But in a context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the judge to suggest that that would be other than reasonable.

So rather than finding that section 117B(6) prevented the removal of the parents despite their conduct, because it was unreasonable to expect their children to leave the UK, their conduct meant that they would be required to leave, which (at least in this case) made it reasonable for their children to leave as well.

In this respect, cases where only one parent would be leaving would seem to be on a stronger footing. However, this will not always be the case. The Court of Appeal looked at this issue in Runa v Secretary of State for the Home Department [2020] EWCA Civ 514 and rejected the idea that in cases where one parent has a separate right to live in the UK while the other parent does not, section 117B(6) would always mean that the removal of the child is unreasonable. Essentially, reasonableness is a fact-sensitive question and cannot be assumed from any one fact. This does not change the fact that families in these circumstances are more likely to succeed than those where neither parent has a right to live in the UK.

No presumption in family’s favour

In the earlier case of MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, the Court of Appeal, with reference to the Home Office guidance at the time, held that a child’s seven years of residence “establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary”. This has subsequently become known as the “powerful reasons doctrine”.

For a while, it was not entirely clear whether this doctrine survived the Supreme Court’s decision in KO (Nigeria) and other subsequent decisions. The question was finally settled by NA (Bangladesh) v Secretary of State for the Home Department [2021] EWCA Civ 953, in which the Court of Appeal unequivocally held that the “powerful reasons doctrine” was no longer good law, finding that “the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain”.

You can read Karma’s excellent analysis of this case here.

Child’s best interests important but not a trump card

An assessment of whether it is reasonable for a qualifying child to leave requires a detailed analysis of their best interests. Now that there is no longer a presumption in their favour, it is particularly important that any application on this basis includes extensive evidence to this effect.

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However, the Upper Tribunal confirmed in Kaur (children’s best interests / public interest interface) [2017] UKUT 14 (IAC) that the principle that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of the parent, “does not preclude an outcome whereby the best interests of a child must yield to the public interest”.

So even if a decision maker considers that a child’s interests lie in staying in the UK, it might still be reasonable to expect them to leave.

Non-biological parents can still qualify

It is helpful to remember that someone seeking to rely on this provision does not have to be a biological parent of the qualifying child or have “parental responsibility” in law, provided they have “stepped into the shoes” of the parent.

This was the conclusion of the Upper Tribunal in RK v Secretary of State for the Home Department (s.117B(6); “parental relationship”) [2016] UKUT 31 (IAC).

Applying as a parent with a qualifying “seven-year child”

Lone parent

The rules for permission to stay on the basis of a parental relationship of a seven-year child are in Appendix FM to the Immigration Rules. The requirements, in brief, are that the applicant:

  • has sole parental responsibility for their child, or
  • 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

If the applicant has a genuine and subsisting parental relationship with a qualifying child (i.e. British or with seven 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 permission to stay, on a ten-year pathway to settlement.

It is important to emphasise that this is not open to anyone who is in a relationship with the child’s other parent, even if they do not live together. The applicant must also not be in a relationship with anyone else who meets the definition of partner under Appendix FM (i.e. married, in a civil partnership or have cohabited for two years).

This application should be made on form FLR(FP).

Two parents

There is no specific provision within the Immigration Rules to grant permission to the parents of a “seven-year 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. 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 permission outside the Rules on Article 8 grounds.

Such applications should be “front loaded” with evidence that demonstrates the family’s residence, sets 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.

The most suitable form for this application would again be FLR(FP).

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.

This article was originally published in 2014 and has been updated so that it is correct as of the new date of publication shown above. Alex Piletska and James Ritchie contributed to the latest update.

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