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


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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.

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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22 Responses

  1. When the “reasonable” test was first introduced, I thought it was a minor gloss intended to allow the Home Office to remove children of parents who were being deported (only in exceptional circumstances would it be “reasonable to remove” a child who had been for seven years). But the Home Office interpretation is quite the opposite (only in exceptional circumstances would it *not* be “reasonable to remove a child who has been here for seven years). Sad to say, the Home Office line has gained strength without ever being properly tested in court (AFAIK). Only with considerable difficulty have I been able to argue that 7 years from age 4 is an “exceptional circumstance” making it unreasonable to remove, for example. When a more sensible reading of Azimi-Moayaed would be: Compelling circumstances are needed to justify removal of a child who has been here for seven years: if those 7 years are from age 4 onwards the circumstances must be even more compelling.

  2. The point about immigration control was raised for me by a case recently concerning an application under the old rules (Edgehill applying). The judge found it would be in the best interests of the children to remain in the United Kingdom, but because they did not meet any of the (old) immigration rules, there was a strong immigration control factor to be placed on the other side of the scales and ultimately immigration control prevailed (in the mind of the judge- appeal pending). Raising the question, had the application been under the new rules and had the children been here for more than 7 years, surely they would have won, because no such immigration control factor would have been present?

  3. Remember what Our Theresa said in her Statement of Compatibility of the New Rules with ECHR too – the one prior to the motion in Parliament in June 2012, where she said, absent countervailing factors, considering Art. 8 and s.55 duties, it would be disproportionate to remove children who had had 7 years’ continuous residence. She then went on to talk about criminality. If the only countervailing factor is that you are here without leave to remain – in other words, if you haven’t been illegally claiming benefits and the like – I fail to see in light of her Statement how Theresa can now say that “well, actually, it is proportionate for them to go with their parents”. As well as Azimi-Moayed, Zoumbas in the Supreme Court provides a useful checklist of points to be taken into consideration, one of which is “Children must not be blamed for the immigration history of their parents.”

    1. Thanks, Jane, I’d overlooked that but it is very useful. Paragraph 7.6 of the explanatory notes to HC 194 says:

      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 Statement of Compatibility, which I don’t recall reading previously, goes 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 DP5/9611) 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.

  4. Zoumbas also said that British citizen children have rights and non-British children don’t…Zoumbas was a pre-new rules application I think. The actual meaning of the new rules in a case where a child has actually been here for 7+ years (Azimi-Moayed’s child was just a baby) has yet to be tested in the higherr courts. When it is, I hope Colin’s interpretation finds favour.

  5. They are being totally inflexible about 7 years. Even where they have asked JR to be withdrawn and lost thousands of pounds (3.9K), they have gone on to refuse again and are now defending with GEN 1.1 and section 19 of the 2014 Act. Totally crazy, they seem to have a lot of money to waste!

  6. I guess all we can do is hope; if the judges do the same thing that the home office does, then all this activity is a bit pointless. Might as well have an all out dictatorship and secret military tribunals.

  7. Summary grounds of defence written by sharp Home Office counsel argue that 7 years “does not reach the threshold of arguability for permission to be granted” – even in cases where there has never been any judicial decision/scrutiny (ever!).

    1. I don’t think EV(Philippines) was brought up by Home Office. Possibly it hadn’t been written when they wrote their Summary Grounds of Defence (UT is slow). The serious illness issue would be a distinguishing factor since, if treatment is not available, then it would be in child’s interest to stay anyway.

      Legal Aid is available for Judicial review, even Article 8 JR. For any JRs started recently you will not be paid by LAA if permission isn’t granted, and for this reason my organisation no longer does new JRs. But for JRs started 6 months ago (as this one) then you will be paid by LAA whether or not permission is granted.

    2. Thanks Philip! I have never done any legal aid work (save “expert reports” for the family court in relation to temporary removal of children to Pakistan). My encounter with legal aid is therefore very limited! Can I please ask how long it took for the permission decision to be made after the summary grounds of defence were filed? Do you know anyone who would take on a legal aid case? In the case in question, all the work has been done privately and on the last occasion we took the case to court the Home Office settled and paid us £3.9K. But now they have refused again and we thus took the case to court again. There is also a legacy element to the case; no asylum claim was ever made but somehow (weirdly) the applicants/claimants have (repeatedly) heard from the legacy cohort of cases! Points to the overall madness in the Home Office! Crazy …

  8. Yeah, that tends to be the line. But then if you are counsel and you have to argue against a grant of permission on a seven year case what would you say?

    One case we have pending (actually one of the very few JRs we have left) concerns a young girl who has been here since the age of 2, is now 11, and has a very serious illness for which treatment may not be available in the proposed country of removal. But apparently it is still “reasonable to remove” her and Azimi-Moayed doesnt’ apply because that was 7 years from age 4 and she has been her since age 2 (I am not kidding!)…

    The Home Office spends most of its summary grounds of defence proving the rules are a complete code. Which probably isn’t true but is also completely irrelevant in the context!

    1. I agree. It’s all just about a “complete code”, “a full coverage of Article 8 rights” etc. Oddly they rely on cases with no children like Nagre and Ahmed where the absence of children weighed against the claimants. Anyway, I hope that your 11 year old client gets something/relief from the JR process (which is a bit dangerous to be involved in these days!).

    2. Well, permission granted anyway: the grant of permission concentrates on the illness aspect and rather ignores the length of residence point.

    3. Hmmm, that’s interesting PT. Thanks for sharing! Hope you go on to WIN. Did you have an EV (Philippines) point? Is there any legal aid for Article 8? From what I gather: NO there isn’t!

  9. Any attempt to rely on s19 of the new Act can be parried by reference to s61 which states;

    For the avoidance of doubt, this Act does not limit any duty imposed on the
    Secretary of State or any other person by section 55 of the Borders, Citizenship
    and Immigration Act 2009 (duty regarding the welfare of children).

    So the s19 considerations cannot be meant to impact on children, except s117B(6) which helps them.

    1. Agreed. I don’t see why anyone should need to identify any “key test” for this. The judge should know it. Now that the judges have read this post by Colin (and are prompted to notice), they can’t really plead ignorance. Seems like I’m being a bit optimistic.

    2. What they say is that the children will get used to living elsewhere. That it will be easy for them to adapt. A bit rough if you’ve only ever lived in UK and all your aunts, uncles friends etc are here. Conveniently, only the mother, father and children are the “family” whereas aunts, uncles grandparents are not. Sounds a bit odd.

    3. Yes, if s.61 wasn’t there the Home Office could say children’s private life (which is essentially what the 7 years rule is about, should be “given little weight” because it was established while here unlawfully, which would be utterly unfair.

  10. 28] Mr Caskie submitted that the immigration judge failed to assess the best interests of the child as a distinct enquiry, separate from any question relating to the public interest in maintaining effective immigration control. He referred me to the decision of Lord Tyre in IE (Petitioner) [2013] CSOH 142 at paras [14] and [15]. The FTT was not entitled to proceed upon a factual assumption that the petitioner would be removed when assessing what was in the best interests of the child. The immigration judge here appeared to compare the position of the child if he was returned to China with his mother with his position if he remained in the UK separated from his mother who was returned to China. In other words, the assumption was made that the mother would be removed, and that was a given when assessing the best interests of the child. That was the wrong approach in law. Lord Tyre’s approach was to be contrasted with that of the UT in Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UK UT00197 (IAC), which suggested that the starting point was that it was in the best interests of children to be with their parents and, if their parents were being removed from the UK, then so should dependent children unless there were reasons to the contrary. The point was one of importance deserving of clarification in the UT and, if necessary, on appeal to the Court of Session.

  11. Thank you Colin for this comprehensive overview.
    One point is sadly inaccurate in our experience, however. You say ‘Since July 2012, adults generally need to reside for 20 years to achieve settlement if any or all of the residence is unlawful’. In fact 20 years only starts you on the ’10 year route to settlement’ so you need 30 to achieve ILR under that rule.
    On the subject of the famous ’10 route’ we’ve been wondering what happens at renewal time, if for example, your dependent British or settled child has turned 18 but you haven’t got to the winning post? And what do you say on the application form if your client has never had a handy child or partner but was granted an initial 2.5 years as a result of a successful HR appeal/JR or because he was a young adult under 25 and had spent more than half his life in UK (which can only happen once I think)? We’ve tried “I am on the 10 year route” and are waiting to see what happens…. It will also be interesting to see what happens in the future when the caseworkers are so new that they won’t have heard about the 10 year route at all.

    1. Thanks for the comment. Para 276ADE(1)(iii) does not qualify the type of residence that must be accrued under the 20 year route, though, other than excluding periods behind bars: “has lived continuously in the UK for at least 20 years (discounting any period of imprisonment)”. On my reading the 20 years of residence need not be in any particular category nor in fact be lawful, unlawful residence would count. Of course, the rule could be changed at any time and scrapped, though, so it is hardly a secure route to status. Where i think I was wrong in the blog post (I have corrected it now) is to say that settlement can be achieved after 20 years – in fact 20 years of residence only puts the person on the 10 year route to settlement, making the total period required to achieve settlement an astonishing 30 years.