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Seven year rule for children must be satisfied at date of application


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This family life case highlights the important point that the ‘7-year rule‘ – that young people under 18 must have lived in the UK for at least 7 years – must be satisfied at the date of application. It is not sufficient that the rule, in Immigration Rules paragraph 276ADE (iv) has been satisfied at the date of the Secretary of State’s decision.

This was unfortunate for the family in Koori who fell foul of the rule, despite serious confusion running through the Upper Tribunal case:

21. There appears to have been considerable confusion about the way in which this ground was dealt with in the UT. First, for some reason neither the parties’ then legal representatives, not Mr Malik or Mr Sharland, nor the UT itself appear to have noticed that the seven year rule was not satisfied, notwithstanding that the FTT had said so – albeit in somewhat cryptic terms – and that it was in any event obvious from the undisputed chronology. So all parties failed to notice that paragraph 276ADE could not apply, and that was so whichever version of the paragraph was in play because in both versions it is a condition for establishing the right to remain that the seven year rule is satisfied at the date of application.

Neither the Home Office Presenting Officer nor the Claimant’s representative referred the Upper Tribunal to the transitional provisions in force at the relevant time, leading to misunderstandings on this case. Lord Justice Underhill gives a stern rebuke directed at the Home Office for their recent trend of not pointing courts to the correct section of law:

39. I would like to express my concern in particular about the failure of both parties’ representatives below (not Mr Malik or Mr Sharland) to ensure that the Tribunals were aware of what transitional provisions were in force as regards the changes to the “seven-year rule”.  In particular, in the Upper Tribunal, although it was clear that there was an issue about the effect of HC 760 on pending applications, neither the Appellants’ former counsel nor the Senior Home Office Presenting Officer below brought a copy to the hearing, and the UT records that “both representatives agreed that we should examine the law for ourselves”.  That is not good enough: tribunals are entitled to expect to be referred at the hearing to the relevant law and to hear submissions on it… I have to say that although both representatives were at fault, in my view the greater responsibility must lie on the Presenting Officer.  I hope some lessons can be learnt from what went wrong in this case.

Source: Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552 (14 June 2016)

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Paul Erdunast

Paul Erdunast is a barrister at Temple Garden Chambers in London (https://tgchambers.com/member-profile/paul-erdunast/). Prior to this he was Legal and Parliamentary Officer at ILPA, where he delivered immigration law training and spoke at conferences. In previous jobs he lectured on asylum law and provided EU migrants with immigration advice.