The Seven-Year Child Reasonableness Test - NA (Bangladesh)
The Home Office used to have a concession called DP5/96 under which there was a presumption that a child who had lived in the UK for a continuous seven year period, and their parents, should not be removed from the UK if no other countervailing factors were present. This policy ended in December 2008. On 09 July 2012 new immigration rules were introduced and the seven-year child concept was back for those cases involving children. In this post we look at recent developments in immigration law regarding applications for leave to remain on the basis of 7 years’ continuous residence as a child.
Statement of changes HC 194, 13 June 2012, amended the rules to include Seven years residence by a child. Paragraph 7.6 of the Explanatory Memorandum reads: “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.”
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.
Then followed the new statutory considerations in relation to the proportionality exercise under Article 8 in Part 5A of the 2002 Act. Thereafter, followed case law which addresses the concept of reasonableness and whether there is a presumption and if so how that is to be applied.
Home Office Guidance
The current Family Policy Family life (as a partner or parent), private life and exceptional circumstances, Version 14.0, published for Home Office staff on 24 June 2021 reads:
There may be some specific circumstances where it would be reasonable to expect the qualifying child to leave the UK with the parent(s). In deciding such cases you must consider the best interests of the child and the facts relating to the family as a whole. You should also consider any specific issues raised by the family or by, or on behalf of the child (or other children in the family).
It may be reasonable for a qualifying child to leave the UK with the parent or primary carer where for example:
- 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 and if there are wider family or relationships with friends or community overseas that can provide support:
o you must consider the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of their life and how a transition to similar support overseas would affect them
o a person who has extended family or a network of friends in the country should be able to rely on them for support to help (re)integrate there o parent or parents or a child who have lived in or visited the country before for periods of more than a few weeks. should be better able to adapt, or the parent or parents would be able to support the child in adapting, to life in the country
o you must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country
o for example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country
o the parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period Page 54 of 96 Published for Home Office staff on 24 June 2021
o fluency is not required – an ability to communicate competently with sympathetic interlocutors would normally suffice
- 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
The parents’ situation is a relevant fact to consider in deciding whether they themselves and therefore, their child is expected to leave the UK. Where both parents are expected to leave the UK, the natural expectation is that the child would go with them and leave the UK, and that expectation would be reasonable unless there are factors or evidence that means it would not be reasonable.
Recent Developments – NA (Bangladesh)
In the recent case of NA (Bangladesh) v Secretary of State for the Home Department [2021] EWCA Civ 953, the Court of Appeal considered the situation for children who have been present and living in the UK for a seven-year period, the test being one of reasonableness and whether a child should be expected to leave, particularly when they or perhaps their parents have no leave to remain or both.
The Secretary of State for the Home Department argued that although the child was born here, educated here and had never left, it was still reasonable for the child to leave. The First-tier and Upper Tribunal dismissed their appeals and the case came before the Court of Appeal.
The First Appellant came to the UK on 17 April 2005 on a visitor visa and then overstayed. The Second Appellant came to the UK in 2009 and overstayed. They married in the UK and have two sons, the first born on 21 July 2010 and second on 19 October 2017. The first child became a British citizen on 11 November 2020; however, this post-dated the appeal and was therefore immaterial for the consideration of whether there was an error of law. It can of course open a different way to argue the case in a future application.
Permission was granted by Hickinbottom LJ who gave permission as he considered that there was an issue of general importance about the correct approach to 276ADE (1)(iv) and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 which deals with the public interest.
There was no dispute YS had at all material times been a qualifying child as he had lived here for seven years. In addition there was no dispute his parents had a genuine and subsisting parental relationship with him.
The Appellants in this case relied upon the decision in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705, which concluded that it is not reasonable for children to leave the UK unless there ‘were powerful reasons to the contrary’, referenced in the judgment as ‘the powerful reasons doctrine’.
Powerful Reasons Doctrine overruled
The Court of Appeal considered KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 which concluded that the parents’ conduct was not directly relevant to the reasonableness assessment. Lord Carnwath explained that the immigration status of the parents is indirectly relevant to the reasonableness test, only to the extent this ought to be considered in the “real world in which the children find themselves”. In reaching this conclusion, Lord Carnwath noted the point made by Lewison LJ in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874:
“58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?”
At paragraph 28 of NA (Bangladesh) the Court referenced the judgment of KO (Nigeria) and concluded:
“The upshot is that the effect of Lord Carnwath’s reasoning in KO (Nigeria) is that, even on the narrower approach, in a case falling under the seven-year provision where neither parent has leave to remain the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the qualifying child to leave the UK with their parents. That is necessarily inconsistent with the so-called “powerful reasons doctrine” apparently endorsed by Elias LJ in MA (Pakistan). Although Lord Carnwath does not specifically spell that out, that is unsurprising since he had in para. 14 of his judgment made it clear that he was going to side-step detailed commentary on the earlier case-law and propose a more straightforward approach”.
Common-sense starting-point
The Court identified that it is ‘axiomatic’ that a child’s best interests is a primary consideration. The best interests can be outweighed by the public interest in the removal of a child or parents.
There is therefore no presumption that a seven-year child should be granted leave to remain. There is no presumption in the opposite direction either; there is only a ‘common-sense starting-point’. At paragraph 30 the Court held:
“It is important, however, to emphasise that the approach approved by Lord Carnwath in KO (Nigeria) does not provide for a presumption in the opposite direction. It represents no more than a common-sense starting-point, adopted for the reasons given at paras. 18-19 of his judgment. It remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents. If the conclusion of the evaluation is that this would not be reasonable, then the “hypothesis” that the parents will be leaving has to be abandoned and the family as a whole will be entitled to leave to remain. (To spell it out: in the case of a qualifying child that will be under paragraph 276ADE (1); in the case of the parents it will be under article 8, applying section 117B (6); and in the case of any non-qualifying child it will derive from the fact that the parents have leave.) Ms Masood made it clear that the Secretary of State acknowledged that in that evaluation the fact that the child had been in the UK for more than seven years would be a material consideration”.
When the Court was called to consider what significance was added by the seven-year provision, if not a presumption against removal, the answer provided was that it creates “a one-way provision which, if it is satisfied, definitively answers the public interest question in favour of the child (and his or her parents) without the need to undertake a general proportionality exercise. That means that other considerations weighing in favour of removal (such as the conduct of the parents) are excluded.” The Court accepts that benefit may be narrowed following KO (Nigeria), but it is not eliminated.
For these reasons and in the absence of a legal presumption, it is important that an application or appeal involving a seven-year child involves thorough consideration of all factors relevant to the reasonableness of the child being expected to leave the UK and live in the country of proposed removal. It should be a fact-sensitive approach supported by evidence and addressing all potential matters, having in mind that it will be necessary for the decision-maker to evaluate all the circumstances in order to establish the answer to the reasonableness assessment.
Contact our Immigration Barristers
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 via the enquiry form below.
This article was co-written by Alexandra Pease and Alex Papasotiriou.
