Can parents and children get leave to remain under 7 years child application in the UK?
The 7 years child residency is qualifying criteria to make an application for leave to remain under the immigration rules part 7 paragraph 276 ADE which requires;
- the child must be under the age of 18 years and have lived in the UK for a minimum of 7 years (discounting any periods of imprisonment) or
- is aged 18 years or above and under 26 years and has spent at least half of his life residing continuously in the UK
- it wouldn’t be reasonable to expect them to leave the UK
The old 7 years child residency policy and changes in immigration rules in 2012
On 9th December 2008, the Government announced the withdrawal of the seven-year child concession (DP5/96) from that date.
Before that date, DP5/96 had for several years allowed some families with dependent children (i.e. children under 18 years who are not leading an independent life) to be granted indefinite leave to remain if the child or children had been living in the UK for at least 7 years.
There was no set policy or guidance in place between 2008 to 2012 to determine when it wouldn’t be reasonable to remove the child from the UK. In the immigration rules changes of July 2012 (Statement of Changes HC194), seven years child residency rules were formally incorporated.
Current 7 years child immigration rules 2012
The following changes are being made to the provisions relating to children:
- Provision is being made for a parent who was granted leave on the basis of a child in the UK to be allowed to remain in the UK once the child has turned 18, provided the child has not formed an independent family unit and is not living an independent life.
- Children may be granted leave in line with their parent where the parent has a route to settlement as the parent of a child who is not settled but has been living in the UK for at least 7 years and it would not be reasonable to expect the child to leave the UK.
Parents’ immigration history is relevant to whether it’s reasonable to remove settled children from the UK
In the recent case of MT and ET (child’s best interests; extempore pilot) Nigeria [2018] UKUT 88 (IAC), the Upper Tribunal gave very good guidance as to when it is reasonable to expect a child to leave the UK, which follows on from a line of cases recommending that the conduct of parents be taken into account when assessing if it is reasonable to expect a child to leave the UK. As yet, the sometimes-harsh effects of these cases stand unchallenged.
When is it unreasonable to remove the child?
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. Its guidance sets out relevant factors for caseworkers making that decision. These include:
- Whether the child would be leaving the UK with their parent(s) — “it is generally the case that it is in a child’s best interests to remain with their parent(s)”.
- The extent of wider family ties in the UK.
- Whether the child is likely to be able to (re)integrate readily into life in another country, relevant factors including the extent of any social, cultural, linguistic ties, access to citizenship, and whether the child has ever attended school in that country.
- Whether removal would give rise to a significant risk to the child’s health.
- Country-specific information.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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