Are children and parents able to 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.
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.
Because so much hinges on the interpretation of “reasonable”, a large body of case law has resulted from attempts to define it.
Applying as a parent with a qualifying “seven-year child”
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).
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.
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
- 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.
Posted on Oct 18, 2021.