7 Years Continuous Residence by a Child
The Home Office used to have a seven-year child policy called DP5/96 under which there was a presumption that a child who had lived in the UK for a continuous seven year period should not be removed from the UK if no other countervailing factors were present. This policy was withdrawn in December 2008.
From 9th July 2012, the Immigration Rules re-introduced the idea of seven years as a benchmark in family cases involving children. Seven years of residence by a child was formally incorporated into the rules as a sufficient period to justify continued residence by the child and parents (See Statement of Changes HC194).
In December 2012, a new criterion of whether it would be reasonable for the child to leave the UK was added by Statement of Changes HC760. Since then, the new statutory human rights presumptions at Part 5A of the 2002 Act have also incorporated a two stage test of seven years continuous residence and whether it would be reasonable for the child to leave the UK.
The current Immigration Rules contain a seven-year provision which is applicable where:
- the child is under 18;
- the child is in the UK;
- the child 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 child to leave the UK.
Why 7 years?
When the seven year child concession was brought within the Immigration Rules, the explanatory notes accompanying that particular change (paragraph 7.6 of HC194) stated that:
‘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 least the last seven years, subject to countervailing factors. The changes are designed to bring consistency and transparency to decision-making’.
The Grounds of compatibility with Article 8 of the European Convention on Human Rights: Statement by the Home Office that accompanied the new rules went 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 DP5/96) 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.’
The evidential requirements are set high. It is expected that applicants will be able to provide independent evidence of each 12 month period that they have lived in the U.K, plus travel documents covering the whole period, unless a good explanation has been provided as to why they cannot.
Not reasonable to expect the applicant 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 the 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 United Kingdom;
- 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, this guidance is not determinative. It is important to note that both Article 8 and the best interests of the child must still be considered in relation to a person’s own individual circumstances and the particular facts of the case.
The courts have found that the ‘best interests of the child’ is a broad notion and its assessment requires the weighing up of diverse factors. In the immigration context the best interests of the child has been identified by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, the Court of Appeal in AJ (India)  EWCA Civ 1191 and by the Upper Tribunal in EA (Article 8 -best interests of child) Nigeria  UKUT 00315 (IAC) as a primary consideration.
Period of grant
Limited leave to remain may be granted for a period not exceeding 30 months if the application for leave to remain on these grounds is successful. Such leave (stay) shall be given subject to such conditions as the Secretary of State deems appropriate.
For professional assistance with applying for leave to remain on the basis of 7 years continuous residence as a child, please contact our immigration barristers in London on 0203 617 9173 or email email@example.com