29 December 2017

7 Years child residency immigration rule in the UK – Guidance for applicants

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If your child was born and lived continuously 7 years in the UK, there are two ways to regularise your child’s immigration status. You can either register your child as a British Citizen if your child has lived in the UK for at least ten years or, apply for Discretionary Leave to Remain if your child has lived in the UK for 7 years or more. The idea of granting Discretionary Leave to Remain to a child who has lived in the UK for 7 years or more was incorporated into the Immigration Rules on 09 July 2012 (Statement of changes HC194).  The 7-year rule echoes a previous policy (known as DP5/96) under which a child who had accumulated 7 years’ continuous residence in the UK could not be deported. This policy is still referred to by UK courts on certain occasions.

The  relevant Immigration Rule applicable to the grant of Discretionary Leave to Remain in the UK based upon a child’s 7 years of residence is triggered when:

  • the child is under 18;
  • the child is in the UK;
  • the child has lived continuously in the UK for at least 7 years; and
  • it would unreasonable to expect the child to leave the UK.

Why 7 (seven) years residence?

The 7-year rule was added to the Immigration Rules with the understanding that a child would have integrated and adapted to life in the UK within this period of time, to such a degree that his removal from the UK would be unreasonable and detrimental to his wellbeing. This triggers the duty of the Secretary of State for the Home Department (SSHD) under section 55 of the Borders, Citizenship and Immigration Act [2009] to consider the best interest of children and the grant of Discretionary Leave to Remain in the UK, as well as the general duty to consider the Human Rights of an individual under Article 8 of ECHR.

Parents of a child who has lived in the UK for 7 years or more can also benefit from the 7-year rule. It is a pre-requisite of an application for Discretionary Leave to Remain based upon the 7-year rule, that the child upon whom the application is based must have lived in the UK  for at least 7 years at the time of application. According to guidance published by the Home Office, the period of 7 years is considered as a sufficient period against which the integration of a child and his/her family in the UK can be tested. The Home Office takes the view that considering to grant Discretionary Leave to Remain to individuals with children that have resided in the UK for less than 7 years would enable a temporary route to settlement.

Not reasonable to expect the child to leave the UK

The Home Office has provided guidance to its caseworkers in relation to the test to be applied with regard to whether it would be reasonable to expect a child to leave the UK. The factors that are taken into account include:

  • any significant risk to the child’s health, for example, where a child is undergoing a course of treatment for a life-threatening or serious illness and treatment would not be available in a country to which he or she would be returning;
  • whether it would be reasonable for the child to return with his or her parents;
  • any wider family ties in the UK;
  • whether he or she is a citizen of the country he or she may return to;
  • whether he or she has previously visited or lived in that country;
  • any family and friendship networks there;
  • any relevant cultural ties there and whether the child understands that culture having been part of a diaspora here;
  • his or her ability to speak, read and write a language spoken there;
  • whether he or she ever attended school in that country.

However, Home Office guidance on Immigration Rules is not determinative. The grant of Discretionary Leave to Remain in the UK based upon a child’s 7 years of residence will depend on the relevant Immigration Rules, case law, Article 8 of ECHR and the duty of the SSHD to consider the best interest of the child. Each case is dealt with on a case-by-case basis.

Discretionary leave to remain duration

A successful application for Discretionary Leave to Remain in the UK based upon a child’s 7 years of residence in the UK will lead to a grant of visa not exceeding the period of 30 months. A child who has lived in the UK for a period of 10 years is eligible to apply to for Indefinite Leave to Remain as a route to settlement.

For professional assistance with applying for leave to remain on the basis of 7 years continuous residence as a child, please contact our immigration solicitors in London on 0203 909 8399 or email enquiries@connaughtlaw.com

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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