The things that tell you that despite being referred to as “Customers” by the Home Office, Applicants are treated no more than cash machines during the application process

Online, the Home Office refer to applicants as “Customers” and state they provide a “Service” to such applicants during the application process:

“The service we offer

Our service standard processing times for standard applications (6 months or 8 weeks depending on application type) will start when we receive your application.

…………………..

 Our customer charter sets out the service UK Visas and Immigration aims to provide its customers and what it expects from them”www.gov.uk/government/organisations/uk-visas-and-immigration/about-our-services

The published Customer Service Commitment states:

“We aim to be a customer-focused organisation, offering a high-quality service, making it clear what you can expect from us and what your responsibilities are in return.

What you can expect us to do

You can expect us to:

  • make our application processes clear and simple
  • respond to your enquiries in full
  • make a correct decision based on policy and law, understanding your individual circumstances
  • explain our decision clearly and, where appropriate, help you understand what to do next
  • have a simple to use complaints process that puts things right if we make a mistake
  • treat you with respect and be sensitive to your situation
  • keep your personal information, and anything you tell us, safe and secure
  • seek your feedback to continually improve our service”.

www.gov.uk/government/publications/customer-service-commitments-uk-visas-and-immigration/uk-visas-and-immigration-customer-commitments

The above professed commitments are nothing but mere lip service.

In practice, applicants are not treated as actual Customers by the Home Office. Neither is a service provided to them. This is despite an applicant having paid substantial Home Office application fees for the “service”.

Indicators that an applying individual is not a customer of the Home Office and no actual service is being provided to them

That in practice applicants are not “Customers” nor receive a “Service” from the Home Office during the application process, but are a good source for the siphoning of money for the government, is evident from the following:

  • When on top of exorbitant Home Office application fees, Applicants are expected(and have been conditioned) to pay between £71.50 to £138.00 or more to book a standard biometrics enrolment appointment. This is despite the Government publishing on 2 November 2018 in relation to the newly introduced application process, Free appointments will be available for everyone, however, customers will also have the option to purchase added value services such as same day appointments and On Demand services” – gov.uk/government/news/new-uk-visa-and-citizenship-application-services-centres-open
  • When Applicants are fleeced twice for the same process, ie paying twice for enrolling biometrics. A £19.20 biometrics enrolment fee is automatically added to the Home Office application fees payable on submission of the online application form. Subsequently however, for Applicants who have already self-uploaded supportive documents and requiring no other additional add-on services, they expected to pay an additional fee referred to above to book an appointment solely to have biometrics enrolled.
  • When an Applicant pays £2408.20 for an indefinite leave to remain application but is required to pay an additional £1560 for the Immigration Health Surcharge if the indefinite leave to remain application is refused but limited leave to remain is granted instead. For example, an applicant applies in April 2021 for ILR based on the 10year lawful long residence Rule, however in September 2021 that application is refused but since the Applicant has a British citizen child or a child aged at last 7years residing in the UK at the date of application, limited leave to remain is likely to be granted instead. In such circumstances, the Applicant will pay out a total of £3968.20 to the Home Office in the space of 5months. The £1560 is required to be paid to the Home Office within 10working days from the date of the refusal of the ILR application, otherwise the deemed limited leave to remain application will be rejected as invalid. If the application is rejected as invalid the applicant becomes an overstayer.  See Paragraph 276A04 of the Immigration Rules in this regard and the circumstances in which the Home Office will treat the application for indefinite leave to remain as an application for limited leave to remain.
  • When the Home Office deduct a £25 administrative fee from the overall application fees paid when an application is rejected as invalid.
  • When a mere human rights limited leave to remain application (£ 2612.20 total per applicant) costs more to process than a SET(LR) or SET(O) or FLR(DL) indefinite leave to remain application (£2408.20 total per applicant). Why can’t the limited leave application also be charged at £2408.20?
  • When an Applicant completes and submits a private life human rights online application form in less than an hour, requiring only to upload a few documents, yet an eye watering £2612. 20 is required to be paid before the online form can go through for submission.
  • When an Applicant on the 10year route to settlement is expected (based on current fees of £2612.20 per applicant) to pay a minimum of £10,448.80 over the years before they are eligible to apply for indefinite leave to remain. If such an applicant has a dependant Partner and they have children later on requiring to be added on in future extension applications during that 10year period, then a fortune from that household to the Home Office will be payable during the 10years.
  • When in order to receive an expedited decision within 5working days via the ‘priority service’, it costs £500 in addition to the application fee. To receive a decision by the end of the next working day through the ‘super priority service’, it costs £800 in addition to the application fee. The standard Home Office application fees payable are already exorbitant as it is. The higher additional fees that apply to receive a faster decision only go to show that applicants are being treated as ATM’s by the Home Office. For applicants of little means needing to travel urgently, perhaps due to family illness abroad, and only able to make provision for the standard application fees, there is no hope of receiving a faster decision within a week.
  • When from submission of an application to decision-making several many months later, no contact at all is received from the Home Office in the interim period. Such a practice is clearly contrary to the Home Office’s own published guidance: “If there is a problem with your application or if it is complex, we will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next”gov.uk/government/organisations/uk-visas-and-immigration/about-our-services
  • When the Home Office Complaints procedure usually yields little that resembles a “customer-focused” approach.
  • When the Home Office play hide and seek with their contact email addresses. A Home Office email address may be in use one week but not the other. When contact is made if a relevant email address is in sight, either no response at all is received from the Home Office or a response is only received following numerous chaser correspondence. So far for human rights applications, the following email addresses have recently in September 2021 yielded some responses from the Home Office: ssc-fhru@homeoffice.gov.uk or fhr14@homeoffice.gov.uk
  • When FLR(FP), FLR(DL), FLR (FM), SET(LR) Applicants (and others) do not receive acknowledgement letters following submission of their applications. Due to the online application process introduced in November 2018, the Home Office no longer issue individual letters acknowledging receipt of pending applications. A consequence of this for Applicants whose employers still insist on seeing a Home Office acknowledgment letter whilst declining to conduct a right to work check on the employee, is termination of employment.   That an appropriately worded acknowledgment letter/email is relevant and important for each applicant is evident from the contents of the email  set out below received from the Home Office on 10 September 2021 after several urgently phrased  chaser emails when an Applicant was about to have her employment terminated:   “Thank you for your email.  We apologise for the late response. Please note that this mailbox is for internal use only. Your email has been forwarded to the relevant department who have advised the following: I can confirm that your client Mrs….. had valid leave in the UK and they made a new application in time. Your client is covered by Section 3C Leave under the same conditions as their previous visa whist your current application is under consideration. Employers can make checks of your immigration status using the link below. https://www.gov.uk/check-job-applicant-right-to-work . Their reference with the UKVI is 1212-0001-000-0000 and 20000000. This relates to the current application that they have open. If you have any further enquiries, please contact our enquiry services. Full details of how to contact UKVI by phone or e-mail, from both inside and outside the UK, can be found at https://www.gov.uk/contact-ukvi-inside-outside-uk.   Any enquiries already made to the above team will be responded to within 15 working days of receipt. Please ensure you follow the correct procedure advised above as further emails to this inbox may not be read and may be deleted without a response”.

Conclusion

When applicants enquire why the Home Office do not respond to correspondence or why the delay in decision making in their case is  growing increasingly alarming despite having paid so much  to the Home Office for processing their applications, it sometimes is tempting to state the obvious: “Unfortunately, you are not and will likely never be treated as a true  “customer” by the Home Office during the processing of your application. Ignore the fact that you have just paid significant fees to the Home Office. The Home Office is a different sort of creature in comparison to other UK government departments. Do not expect a” service” from the Home Office. To the Home Office you are an immigrant (not a customer) who has made an application for leave to remain, to be responded to only when the Home Office are ready to do so or when they can no longer logically sustain the current wall of silence. Be rest assured however that I will diligently continue to pursue the progress of your case including submitting a complaint as agreed with a view to extracting a decision from the Home Office. You may however in the meantime also consider approaching your MP so that they may make separate representations on your behalf in relation to the unreasonable delay in making a decision in your case”.

Reference is  also made to previous blog posts as regards the poor “service” provided by the Home Office, including how immigrants are siphoned dry by substantial Home Office application fees:

 

 

 

 

Zimbabwean mass UK deportations: Just one charter flight and an already desensitized Zim community a month later?

It seems to have taken only one strategically placed deportation charter flight last month to desensitise the Zimbabwean community to the next one.

For the last two weeks or so, it has been said a second charter flight to Zimbabwe is to lift off on 25 August 2021.  Contrasted with the sudden flurry of online blog or media activity last month in the Zimbabwean community, with all sorts of views and comments being expressed here and there at various times of the day and night, there currently seems to be an alarming persistent deafening silence in the community in response to the next charter flight.

A few indefatigable organisations (such as ZHRO, ROHR and Zimvigil) and some other individuals seem however determined to plough on in their campaigns, raising awareness to the human rights situation in Zimbabwe.

BARACUK, on their Twitter handle did a fantastic campaign job last month in response to news of the charter flight, and has continued to do so, lending a voice to the plight of the Zimbabwean community and providing reliable updates. www.twitter.com/BARACUK?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

General concern in the Zimbabwean UK based community over the mass deportations

On-line discussions in July 2021 revealed general concern for deportees and their family members, however some expressed views on legal issues(from those not legally qualified)  appeared merely speculative, misleading, a display of  ignorance of  the law, with others appearing to cause unnecessary alarm/panic and yet others expressing outright ridicule:

  • Why would it take someone 20years to resolve their immigration status? Havana kurongeka (they don’t have their affairs in order)
  • They deserve to be deported with nothing
  • The deportees will be sent to Rwanda from the UK
  • They are criminals, let them go
  • There is no place like home, they must return, their ancestors welcome them
  • Even those of you naturalised as British citizens and those holding indefinite leave to remain will be caught up sooner or later in deportations and so must tread carefully
  • Legislative bills going through Parliament currently have been drafted with these Zimbabwean deportees in mind – do you not see the coincidence with the charter flight?

Individuals and their relatives requiring legal advice and representation should ensure the persons they seek advice from are either appropriately registered or authorised according to the law. That way individuals affected can obtain effective legal advice and representation where possible.

Regularization of immigration status: it’s not as simple as it looks or sounds

From news reports since early 2018, it has been clear that thousands of undocumented Zimbabweans in the UK will be targeted for return to Zimbabwe- www.news24.com/news24/Africa/Zimbabwe/uk-to-deport-at-least-2-500-illegal-zimbabweans-report-20180216

Where resolution of immigration status seems much prolonged, increasingly frustrating, with no peace of mind but a mere hope of regularising status, yes, a person may, should they wish, consider the option of voluntary return.

For some however, matters generally are not as straight forward as may be thought.

It is sometimes the case that from a particular point in time lasting months or even years, a person may not fit squarely into the various categories of the Immigration Rules and policies and the Home Office may not be prepared to exercise discretion in favour of such a person.

For some individuals,  it may therefore not be that easy to regularise immigration status where something has gone wrong in the past.

Deportation cases generally- foreign national criminals:

A person may have held no permission to remain in the UK or been granted some form of limited leave or even indefinite leave but find themselves subject to deportation proceedings following a criminal offence(s), after several years or decades of residence in the UK.

Individuals who are subject to deportation proceedings, following convictions for criminal offences, may have settled/British minor children and partners in the UK, however the relevant applicable laws are particularly stringent and very difficult to satisfy- that is why it has been seen in the last month that a person who has resided here for twenty years, having minor British children and a wife in the UK, can be deported to Zimbabwe despite having a family life here.

In the majority of such cases, persons who were detained last month or are intended to be detained in future, would have been subject to deportation proceedings months or years prior, been issued with a deportation order automatically before an appeal is heard but ultimately receive a negative outcome in the Tribunal or higher courts.

Those who were subjected to enforcement raids on 13 July 2021 or detained on reporting, included a few such persons with previous failed challenges to deportation proceedings, but because they were “irremovable” due to an absence of a travel document, they remained in the UK years after a failed deportation appeal.

It should also be borne in mind that individuals with certain defined criminality issues or have deportation orders in place cannot place reliance on the 20year Rule (20years continuous residence in the UK, discounting any periods of imprisonment). Their applications will not succeed for failure to satisfy the Immigration Rules on Suitability criteria. The relevant Rules especially drafted for deportation cases instead set out separate criteria to be met by foreign criminals with private life/lengthy residence in the UK.

Deportation cases are particularly complex. On their face, the private and family life provisions of the Immigration Rules required to be satisfied in order to successfully resist deportation appear straight forward enough but are not easy to satisfy in practice.   There has been much litigation after 2012, when the applicable Rules were introduced, such that for a deportee seeking to resist deportation, careful regard must be had to the relevant caselaw which has sought to interpret the Rules. Relevant documentary evidence must also be carefully sourced and presented to improve prospects of success. Supportive statements also need to be provided even at the stage where a person is required to provided reasons to the Home Office as to why they should not be deported.

Deportation cases: application to revoke a deportation order

A person subject to a deportation order may apply to the Home Office to have the deportation order revoked.  Revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order

There are no Home Office application fees or applications forms required to be completed to accompany such an application.

Applications to revoke a deportation order must, where there are previous Home office decisions, Tribunal or higher court decision relevant to the individual, have regard to these past decision so as to ascertain what went wrong in the past and what needs now to be addressed.

Representations and supportive documents must be submitted in support of an application to revoke a deportation order. An applicant can place reliance upon private and family life provisions of the Immigration Rules or other very compelling circumstances to argue why they the deportation order should be revoked.

If an application to revoke a deportation order is refused, the refusal may generate an in-country right of appeal.

Where no right of appeal is provided, depending on the circumstances, a challenge via judicial review proceedings may be commenced.

Revocation of refugee status

The Home Office may revoke a person’s refugee status.

There are several triggers which could lead to such action but relevantly for those whose refugee status is revoked following a criminal conviction, this would arise having regard to applicable law.

Article 33(2) of the Refugee Convention provides for refugees to be returned to their country of origin, even though they may face persecution, where either:

  • there are reasonable grounds for considering they are a danger to the national security of the host state
  • they pose a danger to the community after having been convicted by a final judgement of a particularly serious crime

Article 33(2) of the Refugee Convention is reflected in Section 72 of the Nationality, Immigration and Asylum Act 2002 which provides that, for the purposes of Article 33(2), an individual is presumed to have committed a serious crime and be a danger to the community if they are sentenced to imprisonment of at least 2 years. Section 72(6) provides that a presumption under section 72 that a person constitutes a danger to the community is rebuttable by that person.

Where Article 33(2) applies, a refugee may be removed from the UK in spite of the fact they are a refugee according to the Refugee Convention. However, whilst an individual remains at risk of persecution or serious harm in their country of origin they cannot be removed there as this would be contrary to the UK’s obligations under Article 3 ECHR- ie subjection to inhumane and degrading treatment.

If refugee status is revoked and no other form of leave to remain is granted, a person may later on,  where such circumstances arise, be able to submit a fresh claim for asylum.

If in that fresh claim for asylum, the person is found to be at risk on return but it is still  considered they are a danger to the community, they may be granted limited leave to remain as their removal would be contrary to Article 3 of the ECHR.

Failed asylum seekers and fresh claims:

For failed asylum seekers liable to removal, fresh asylum claims may be submitted if the facts give rise to such a claim.

In addition to submitting Representations and evidence, fresh claims really should be accompanied by  a supportive statement from the applicant. This is because preparation of the statement lends support to the reasoning/basis behind the claim.

If a right of appeal is not provided where the claim is refused, judicial review proceedings intended to seek an in-country right of appeal might have a good lifting ground where an effective supportive statement was also submitted with the fresh claim.

Not only can fresh asylum claims be submitted by a failed asylum seeker, but also fresh human rights claims based on private and family life provisions.

There is no  Home Office application fee for submitting a first or fresh claim for asylum.

Unless an applicant chooses to do so for whatever reason, there is no requirement to complete an online application form and submit a Home Office application fee with a fresh human rights application. Both fresh asylum and fresh human rights claims can be submitted by a failed asylum seeker without providing any Home Office fee by following the in- person appointment UKVI Liverpool Further Submissions procedure.

New asylum claim:

It is also possible for a person who has been here for 20years but never claimed asylum in the  UK to raise a brand new claim  for asylum.

This was done last month on 19 July 2021 and a few hours in the afternoon removal directions to Zimbabwe were cancelled.

A very detailed asylum statement for the applicant was however provided along with Representations including supportive relevant background evidence in relation to the human rights abuses and suppression of dissent in Zimbabwe.

It is not enough to  simply state in writing that  a person wishes to claim asylum, is at risk on return and removal should be stopped. The Home Office may not cancel the removal directions on the basis of such vague representations.

The statement or letter requesting that the asylum claim be registered must be particularised in relation to the claim, also providing reasons and explanations as to why the individual has raised an asylum claim after so many years in the UK.

Persons with British minor children or settled Partners in the UK:

Persons without criminality issues arising nor a deportation order in place can have resort to a much wider array of categories of immigration law to seek to place reliance upon as a basis of application.

  • Children born in the UK may have resided here continuously for at least 7years whilst under the age of 18years. Along with their undocumented parents, they can place reliance on the 7year Rule as set out in the Immigration Rules as a basis of stay.
  • A person may be undocumented, but their child born here could have accrued 10years continuous residence in the UK whilst under the age of 18years.The child can apply for registration as a British citizen. Their parent(s) may then seek to regularise their status on the basis of their family life with their British citizen child.
  • A father or mother with contact/access but not residing with their British child or their child who has resided here for at 7years years, may seek to submit an application to the Home Office if they have a supportive signed statement from the parent living with the child confirming access with the child or if they are able to obtain a family court order giving them direct access to the child.
  • A person may be married to or have resided in the UK with their British or settled Partner for at least 2years. Subject to meeting the relevant requirements and providing supportive evidence, a leave to remain application can be submitted on the person’s behalf. Due to the nature of such applications, with the applicant being an overstayer, a detailed statement at least from the Sponsor should be prepared and provided clarifying the particular personal circumstances and addressing matters as required by the Rules.

Person with lengthy residence in the UK but without settled minor children and or partners:

An individual may be in the UK, with no British or settled partner nor minor children such that they are unable to raise family life issues by way of application.

Unless they meet the 20year Rule requirements or private life requirements for young adults who have spent at least half their lives in the UK whilst over the age of 18years but under 25, such applicants require particular care on advice and when applications are being prepared. This is because such applicants may not be caught by the requirements of the Immigration Rules.

Otherwise, applicants can place reliance on their private lives in the UK where the requirements of the Immigration Rules can be shown to be met.

The Immigration Rules on private life requirements provide for applicants who are aged 18 years or above and have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK. The Rule looks simple enough to satisfy but the in-built “very significant obstacles to integration” test is difficult to satisfy. The test requires consideration of several issues relevant to the individual such as whether they have family in the country of return, any friends, why they state they would be unable to obtain employment in their country of origin or be destitute, whether they can have resort to the social assistance system in the country of return, why they cannot utilise any funds provided via the Voluntary Returns Scheme and why they would state they are unable to integrate into life in the country of return when on the facts they likely lived there the majority of their life before coming to the UK.

Quite a few undocumented Zimbabwean nationals who arrived here in 2001 or 2002 are due to regularise their immigration status relying on continuous residence of 20years in the UK. It is however not enough to place reliance merely on an entry date of 20years ago plus a visit visa entry stamp in an expired passport.

A person who has resided here for at least 20years can have their application for leave to remain refused for failure to provide documentary evidence showing their continuous residence for each of the 20years residence.  The application has to be prepared very carefully and there is an art to it in particular where a person has problems providing some documentary evidence.

Those due to accrue the requisite 20years in 2002 are understandably concerned with removal action being taken when they are just a few months short of meeting the required residence. Legal advice should be taken so that reliance can be placed on other provisions to cover the gap in the meantime.

Other provisions and other types of applications:

There are several other provisions of the law and other types of application such as Article 3 Medical condition cases and EUSS Zambrano applications, not referred to above which might enable a person to regularise their immigration status.

Seeking legal advice will assist in bringing out the relevant facts of the case and consequently the provisions of law or Guidance which should be relied upon.

It now seems fairly easy for the Home Office to obtain an Emergency Travel Document (ETD) from the Zimbabwe Embassy

It currently seems that the re-documentation interviews by Zimbabwean Embassy officials that had begun from 2018 are no longer a pre-requisite and travel documents are being issued even for those not interviewed.

For example, those detained on 13 July 2021 had requests for travel documents sent to the Zimbabwean Embassy some weeks or days prior to the home raids and travel documents were issued either prior to the raid or a day or so after detention but prior to 21 July 2021.

It now seems generally fairly easy and straightforward for the Home Office to obtain travel document for Zimbabwean returnees.

The ETD application package consists of a cover letter from the Home Office, a form and documentation an applicant would have provided to the Home Office during the course of applications previously submitted, such as Zimbabwean birth certificates, National ID cards, expired passports and any documents that connect a person to Zimbabwe.

What occurred during the gruesome months of the Covid-19 pandemic which enabled the UK government to detain with a view to deportation from July 2021, was the capitulation of the Zimbabwean government on a number of issues on the one hand and the provision of some incentives to that government on the other.

Ultimately and relevantly, all that the Zimbabwean government is required to do is issue ETD’s without any fuss and give the outward appearance of welcoming deportees.

Prepare for a tussle

Intended deportees, those that represent them as well as those campaigning actively, must be prepared for a tussle.

The sort of legal wrestling that was witnessed between 2005 and 2013 when prolonged litigation related to enforced return of Zimbabwean failed asylum seekers saw the Upper Tribunal, Court of Appeal and even the Supreme Court, occupied with the legal challenges focused on safety of return.

Following the start of the current deportations, there will be litigation in the Upper Tribunal and higher courts over the next months and years.

Meanwhile, the Home Office and the Zimbabwean government currently appear to have a head start – the 14deportees that were removed on 21 July 2021 were one too many.

Deportees with criminal convictions were deported on 21 July 2021. For this group of deportees, the next flight is understood to be only a few days away.

The next move after some weeks or months will be to deport those without any criminal convictions and perhaps even those undocumented but with 18 or 19years residence the UK.

The reticence in the Zimbabwean community regarding the next deportation flight from the UK may or may not be reflective of the general attitude to be adopted as each scheduled removal flight takes place every few weeks over the course of a year or some years.

The next returnee might be a father, brother, sister, finance, spouse, mother or an adult child of someone showing indifference to current circumstances.

 

 

 

Zimbabwean charter flight of 21 July 2021: A further deferral of removal directions

Two statements later, 4 separate sets of representations and bundles of researched evidence, removal directions have been cancelled for yet another Zimbabwean “deportee” .

Statements and representations were emailed to the Home Office on Friday, 16 July 2021 following detention on 13 July 2021.

At 3.50pm this afternoon, an email was received notifying that removal had been cancelled.

A father with British children had been targeted for removal by charter flight on 21 July 2021.

Court proceedings not required.

Round 2. Release issues.

Don’t give up! Zimbabwean removal deferred within 48hours of instructions

 

Four detailed statements later, five sets of representations, numerous discussions with claimant’s wife, removal has now been referred without the need for any court proceedings.

Instructed late Saturday afternoon, 17 July 2021. By Monday, 2.45pm removal had been deferred for a claimant who has been here for 20years , with British children, appeal rights exhausted and subject to a deportation order.

Perseverance, perseverance, perseverance. Research, research and even more research. Above all reflection and strategization.  And absolutely no sleep for 24hours.

I encourage claimants, legal representatives and campaigners not to give up!

 

 

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside

 “It’s is now time for the Home Office to remove the offending parts in Guidance Derivative rights of residence. The Guidance appears misleading and results, as intended, in a discouragement of or an unlawful bar on entitled would- be applicants from relying upon the EEA Regulations”, so concluded a blog post of nearly one and half years ago- Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations | UK Immigration Justice Watch Blog

Following Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin), that is what the Secretary of State may well have to do, ie amend or publish new Guidance affecting those with  a Zambrano right to reside.

Zambrano and Appendix EU

As is widely known, since 1 May 2019, a ‘person with a Zambrano right to reside’ has been able to apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the EU Settlement Scheme.

In the case of Zambrano, the CJEU found that a European Union (EU) Member State cannot refuse a person the right to reside in that State, where to do so would deprive their dependent EU citizen children (who reside and are nationals of that State) of genuine enjoyment of the substance of their EU citizenship rights by forcing them to leave the European Economic Area (EEA).

The primary carer of a British citizen will have a derivative right to reside in the UK based on Zambrano if both the following apply:

  • the British citizen is also residing in the UK
  • the British citizen would be unable to reside in the UK or in an EEA Member State or Switzerland, if the primary carer left the UK for an indefinite period

The conditions to be satisfied for a derivative right to reside based on Zambrano are set out in regulation 16(5) of the 2016 EEA Regulations.

Appendix EU refers partly to the relevant provisions of the EEA Regulations when defining a ‘person with a Zambrano right to reside’. Therefore, the applicant will be a ‘person with a Zambrano right to reside’ under Appendix EU where, they are resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, satisfying several criteria.

The Akinsanya litigation

The case of Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), concerned the decision of the Secretary of State on 29 September 2020 refusing Ms Akinsanya’s application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘.

Deliberately calculated amendments to the Regulations and Guidance:

The Court made references to the following:

  • Regulation 15A of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) was noted to have been impeccably drafted and accurately reflected the true legal scope of the decision in Zambrano, namely that holding indefinite leave to remain in the UK, and nothing but such indefinite leave, would automatically debar an application from being made for a Zambranoderivative right of residence under Regulation 15A. Regulation 15A, as well as the Guidance issued at that time accurately stated that a person with limited leave would be entitled to apply for a Zambrano derivative right of residence. For this reason such a person was not designated as “exempt”.
  • The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) replaced the 2006 Regulations.  When making the 2016 Regulations the Secretary of State decided to maintain in Regulation 16(7)(c)(iv) only indefinite leave as the criterion for an exempt person; there was no hint that at that point she considered that the definition of exempt person should be expanded to catch all those with limited leave to remain.
  • On 7 March 2019 Secretary of State promulgated the EUSS. She laid before Parliament on that same day the Immigration (European Economic Area Nationals) (EU Exit) Regulations (SI 2019/468), which came into force three weeks later on 28 March 2019. These made amendments to the 2016 Regulations. Specifically, a new Regulation 16(7A) was added which stated: “(7A) Leave to enter, or remain in, the United Kingdom under the 1971 Act which has been granted by virtue of Appendix EU to the immigration rules is not to be treated as leave for the purposes of paragraph (6)(b) or (7)(c)(iv)”. Therefore, on 7 March 2019 the Secretary of State modified the definition of an exempt person to exclude someone who has been granted leave to remain in the UK under the EUSS. It was noted by the Court that the Secretary of State modified the definition of leave to allow someone granted leave under the EUSS nonetheless to apply for a Zambrano derivative right to reside, yet she chose not to modify any other aspect of the regime governing leave
  • Paragraph (b) in Annex 1 of Appendix EU to the Immigration Rules was promulgated on 7 March 2019 and defined a person with a Zambrano right to reside as a:  “a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
    …. (b) without leave to enter or remain in the UK, unless this was granted under this Appendix
  • On 2 May 2019, the Secretary of State issued Guidance documents under challenge namely “Free Movement Rights: derivative rights of residence” (version 5.0). This stated that people with limited leave to remain could not apply for a Zambranoderivative right to reside and provided that: “A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.…Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.…This means that a Zambrano application must be refused if the applicant: has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available; has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.” The Court stated that it was it troubling, to say the least, that this instruction should have been issued requiring staff to ignore the clear terms of the 2016 Regulations, and therefore to act unlawfully.
  • Home Office Guidance, “EU Settlement Scheme: person with a Zambranoright to reside” (version 4.0 of 27 April 2021) states: “A Zambrano right to reside is only available to a person who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. As set out in sub-paragraph (b) of the definition of a ‘person with a Zambrano right to reside’ in Annex 1 to Appendix EU, an applicant cannot meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain in the UK, unless this was granted under Appendix EU. An applicant cannot therefore meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain granted under another part of the Immigration Rules (such as Appendix FM) or on a discretionary basis outside the Rules”.

How the litigation arose

It was established that Ms Akinsanya, a sole carer of a British citizen child was granted 30 months limited leave to remain under Appendix FM until 11 January 2022, with no condition preventing recourse to public funds. Her subsequent application of 29 January 2020, under the EU Settlement Scheme for indefinite leave to remain under Appendix EU of the Immigration Rules, on the basis that she was a Zambrano carer with five years’ continuous residence was refused by the Secretary of State in September 2020. The Secretary of State decided that the claimant was not eligible for the EUSS because she had already been granted limited leave to remain, and so was barred by paragraph (b) of the definition of ‘person with a Zambrano right to reside’ in Appendix EU.

Ms Akisanya sought an order in the Administrative Court quashing the decision made by the Secretary of State on 29 September 2020 refusing her application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘. She also sought other declaratory and quashing relief.

The question the Court had to decide, was whether the right to reside was automatically extinguished if there was, at the time that it is claimed, a concurrent limited leave to remain.

The Secretary of State’s position was that the true meaning of Zambrano is that any national award of limited leave to remain acts to thwart an application for a Zambrano derivative right to reside.

A win in the Administrative Court

In allowing the Claimant’s application for judicial review, the Court concluded:

  • The Zambrano principle is simple and clear. An EU citizen, who happens to be a small child, is entitled to enjoy the full benefits of EU citizenship, of which the principal one is living in EU territory. If her primary carer were to be expelled from EU territory, and if in the real world the EU citizen would have to accompany the carer, then the EU citizen is denied the benefits of her citizenship. Therefore, her carer has to be granted residence in the relevant EU state.
  • In the Court’s judgement, a proper analysis of the EU cases clearly demonstrates that the court did not consider a limited leave to remain under national law to be a Zambranoextinguishing factor
  • Nothing decided in the CJEU or domestically since the decision in Zambranosupports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano On the contrary, it is clear from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.
  • The Secretary of State erred in law when she formulated paragraph (b).

In relation to issues raised as regards amendment of the 2016 EEA Regulations, the following came under consideration:

  • It was noted that the argument advanced on behalf of the Secretary of State was that the Court should construe the 2016 Regulations so that they conform with what she maintains to be the true scope of the Zambrano The Court indicated that it had already rejected the Secretary of State’s argument that the true scope of the Zambrano jurisprudence does not extend to people with limited leave to remain.
  • If the natural meaning of the words in the domestic measure appears to grant its users an uncovenanted bonus then the corrective remedy lies in the hands of the rule makers and Parliament, and not in the hands of the judges.
  • Even if the Court was wrong about the juridical scope of the Zambrano decision, its judgment nonetheless was that neither a textual nor a contextual construction of Regulation 16 can yield a meaning which so radically reduces its reach.  It would amount to judicial amendment not interpretation.
  • What was being suggested was to add words( i.e limited leave) to a domestic statutory instrument which have the effect of stripping away rights from what may be a substantial cohort of applicants.
  • It was the Court’s judgment that, irrespective of the true scope of the Zambrano jurisprudence, the natural, fair, reasonable and plain meaning of the words of Regulation 16 entitle an applicant under the 2016 Regulations for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria in that Regulation rather than being struck out peremptorily. The existing words in Regulation 16 are clear and the proposed amendments go well outside the permissible range of meaning of those words.

Why the Secretary of State has not yet made the amendments to the Regulations herself

In Akinsanya, the Court asked why the Secretary of State was asking the Court to do her amending for her: if the Secretary of State was so anxious that persons with limited leave to remain should also be designated as exempt persons, it would be the easiest thing for the 2016 Regulations to be amended again.

The Court was informed by those representing the Secretary of State that this would not be straightforward as the 2016 Regulations had in fact been revoked by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1(1) para.2(2) with effect from 31 December 2020, but the revocation has effect subject to savings specified in two statutory instruments made pursuant to that Act.

The Court noted in summary, that the effect of the savings is to allow people in the position of the claimant whose rights had vested prior to implementation day on 31 December 2020 to make their claim, however, it was apparently, not straightforward to make amendments to these preserved provisions.

Declarations by the Court and a quashing order

The Court made the following declarations:

  • The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a “person with a Zambrano right to reside” includes paragraph (b) “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix.”
  • The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.

The Secretary of State’s decision of 29 September 2020 refusing the Claimant’s indefinite leave to remain under Appendix EU of the Immigration Rules was quashed.

Developments: The Consent Order of 17 June 2021

The Claimant’s application for further relief was adjourned to 17 June 2021.

Appended to the Akinsanya judgement published on 9 June 2021, is a Consent Order dated 17 June 2021.

The Consent Order provides as follows, amongst other matters:

a.The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules (“Appendix EU”);

b.The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside (‘Zambrano application’) and is affected by the Court’s judgment, until after she has completed her reconsideration of Appendix EU;

c.In paragraph (a)(v) of the definition of ‘required date’ in Annex 1 to Appendix EU the reference to “limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated” includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;

d.To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;

e.The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of ‘required date’ in Annex 1 to Appendix EU, to have reasonable grounds for the person’s failure to make that application at the earlier date relevant under that definition;

f.In accordance with paragraph (c) of the definition of “EEA Regulations” in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;

g.Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;

h.The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;

i.Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.

**In relation to further information as to the effect of the Consent Order and other helpful clarifications as well as a further point of reference in relation to the Akinsanya litigation, the information provided by Hackney Community Law Centre is of assistance: www.hclc.org.uk/2021/06/zambrano-carers-and-the-euss-scheme-what-you-need-to-know/

Conclusion

What the Secretary of State has since 2019 been hard at work on, i.e a deliberate thwarting of would-be Zambrano applicants, has been stalled. Whatever the outcome of the pending litigation in the Court of Appeal, for now at least, the Secretary of State should accept that the Akinsanya litigation has opened the door wide open for applications from hundreds or even thousands of Zambrano primary carers of British citizens- not only from those with limited leave to remain, but applicants without any leave, including third country primary carers subject to deportation.

Court of Appeal: 7year provisions do not create a presumption in favour of a 7year child being granted leave to remain

The Court of Appeal in NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953 (24 June 2021)  has just decided that the “powerful reasons doctrine”  in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705[2016] 1 WLR 5093 no longer remains good law, following KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53[2018] 1 WLR 5273.

Not only that, but NA(Bangladesh) concludes that the seven-year provision does not create a presumption in favour of a seven-year child and their parents, being granted leave to remain.

Summary background

In summary, the appeal in NA(Bangladesh) concerned two Bangladeshi nationals, who having overstayed in the UK since 2005 and 2009 respectively, submitted a leave to remain application based on the 7year Rule in reference to the relevant qualifying child(YS), who was born in the UK on 21 July 2010.

The application of 5 April 2018 was refused on16 August 2018. On appeal, both the First Tier Tribunal and Upper Tribunal dismissed the appeal.

Relevant provisions

The Court of Appeal noted that permission to appeal had been given as it was considered that the appeal raised an issue of general importance about the correct approach to paragraph 276ADE (1) (iv) of the Immigration Rules and section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (which falls under Part 5A of the Act).

YS ‘s claim was based on paragraph 276ADE (1) (iv) of the Rules, under which a person under the age of 18 will be entitled to leave to remain if they have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect them to leave the UK. YS had at the time of the Secretary of State’s decision lived in the UK for more than seven years, and it was his case that it would not be reasonable to expect him to leave the UK.

Section 117B (6) of the 2002 Act states:

“……………………….

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.”

“Qualifying child” is defined by section 117D (1) as:

“a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more.”

YS’s parents and his younger sibling, were not entitled to leave to remain under the Rules. The parents relied on section 117B (6).

The Court noted that YS had at all material times been a qualifying child under alternative (b) because he had lived in the UK for more than seven years. There was no dispute that both parents had a genuine and subsisting parental relationship with him, and accordingly that element (a) in subsection (6) was satisfied. The only issue, as regards the parents’ claim, was whether, as required by element (b), it was reasonable to expect YS to leave the UK. If it was not, the parents would be entitled to leave to remain, and YA would have to be given leave to remain with them.

Caselaw considered:

Runa v Secretary of State for the Home Department [2020] EWCA Civ 514[2020] 1 WLR 3760

Secretary of State for the Home Department v AB (Jamaica) [2019] EWCA Civ 661[2019] 1 WLR 4541

KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53[2018] 1 WLR 5273

SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245[2017] ScotCS CSOH 117

R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705[2016] 1 WLR 5093

PD (Sri Lanka) v Secretary of State for the Home Department [2016] UKUT 108 (IAC)

EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874

Zoumbas v Secretary of State for the Home Department [2013] UKSC 74[2013] 1 WLR 3690

Appellant’s argument

It was the Appellants’ case that in considering the reasonableness question the Upper Tribunal should have proceeded on the basis that it would not be reasonable for a seven-year child to be expected to leave the United Kingdom unless there were “powerful reasons to the contrary” –, ie “the powerful reasons doctrine”. It was submitted that such an approach was required by the decision of the Court of Appeal in (MA (Pakistan).

It was submitted that it was an error of law for the Upper Tribunal to hold that “the powerful reasons doctrine” did not survive KO (Nigeria).

MA(Pakistan)’s approach to the “reasonableness test”

The Court in NA(Bangladesh) stated that the main issue of principle decided in MA(Pakistan), in which Elias LJ gave judgement, was whether, in considering whether it was reasonable to expect a child to leave the UK when he or she had lived here continuously for seven years, the focus should only be on factors relating to the child (“the narrower approach”) or should incorporate all matters bearing on the public interest, including the conduct and immigration history of the parents (“the wider approach”).

Elias LJ in MA(Pakistan):

  • rejected at paragraph 40 of his judgement a potential argument in favour of the wider approach that since it is generally in a child’s best interests to live as part of the family unit, it will generally be reasonable to expect the child to leave the United Kingdom with the parents if they do not have leave to remain
  • at paragraph 45 of his judgment stated that the then very recent decision in MM (Uganda) v Secretary of State for the Home Department[2016] EWCA Civ 450 constituted binding authority in favour of the wider approach

Having adopted the wider approach, Elias LJ referred to how “the reasonableness test” should be applied:

“46.Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes” in which it is expressly stated that once the seven years’ residence requirement is satisfied, there need to be “strong reasons” for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit and that must rank as a primary consideration in the proportionality assessment.”

The “powerful reasons doctrine” emanates from Paragraph 48 of Elias LJ’s judgment:

“48. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary”.

What the Supreme Court in KO(Nigeria) said regarding the approach to the “reasonableness test”

Lord Carnwath delivered the only judgment in KO(Nigeria). He referred to the decision of the Upper Tribunal, in PD (Sri Lanka) and stated at paragraph 10, referring to an Immigration Directorate Instruction:

“The President … cited … relevant guidance contained in an Immigration Directorate Instruction (‘IDI’) of the Home Office entitled ‘Family Life (as a partner or parent) and Private Life: Ten Year Routes’, published in August 2015, extracts of which were appended to the judgment … . They included a section headed ‘Would it be unreasonable to expect a non-British citizen child to leave the UK?’, under which were set out a number of ‘relevant considerations’, such as risk to the child’s health, family ties in the UK and the likelihood of integration into life in another country and:

‘b. 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). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK.’

There was no reference in the list to the criminality or immigration record of the parents as a relevant factor.”

At paragraphs 16 to 17 of his judgement, Lord Carnwath considered the interpretation of paragraph 276ADE (1) (iv) and section 117B (6). The Court in NA(Bangladesh) summarised the effect of Lord Carnwath’s considerations in those paragraphs:

  • the reasonableness question must be approached in the same way under both paragraph 276ADE (1) (iv) and section 117B (6); and
  • agreeing with Elias LJ’s preferred narrower approach in MA(Pakistan)and over-ruling MM (Uganda), both provisions are concerned only with “what is ‘reasonable’ for the child”, and accordingly that the conduct of the parents is irrelevant.

At paragraph 18 of his judgement in KO(Nigeria), Lord Carnwath stated:

“18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well-expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245[2017] ScotCS CSOH 117:

’22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, “Why would the child be expected to leave the United Kingdom?” In a case such as this there can only be one answer: “because the parents have no right to remain in the UK”. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made …”

Lord Carnwath went on to state at paragraph 19 in KO(Nigeria):

“He noted (para 21) that Lewison LJ had made a similar point in considering the ‘best interests’ of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58:

’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?’

To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that ‘reasonableness’ is to be considered otherwise than in the real world in which the children find themselves.”

In relation to paragraphs 18 and 19 set out above, the Court in NA(Bangladesh) sought to simply matters and stated that Lord Carnwath’s point was that, notwithstanding his conclusion that the parents’ conduct is not material as such, to the extent that it has led to their not having leave to remain it will still have been “indirectly” material to the reasonableness question because:

  • the reasonableness question has to be considered on the “hypothesis” that the parents will have to leave (that is the so-called “real world” point supported by the citation of SA (Bangladesh)and EV (Philippines), and
  • it will normally be reasonable for a child to be with their parents.

“powerful reasons doctrine” in MA(Pakistan) inconsistent with Lord Carnwath’s reasoning in KO (Nigeria)

In NA(Bangladesh), the Court of Appeal emphasised the following:

  • for the purpose of the specific point that Lord Carnwath was making in paragraph 18, it was only necessary for him to establish that the fact that the parents had no leave to remain couldaffect the outcome, not that it normally would.
  • Although Lord Carnwath’s reasoning is expressed in terms of it normally being reasonable for a child to bewith their parents, not of it normally being reasonable for him or her to leave with them, it was not right to read his judgment in so limited a sense.
  • 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). 

The seven-year provision does not create a presumption in favour of a seven-year child and their parents being granted leave to remain

In dismissing the appeal in NA(Bangladesh), the Court of Appeal concluded:

  • It followed from the analysis provided that the Upper Tribunal Judge was right to reject the submission that “the powerful reasons doctrine” remained good law
  • the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain.
  • It was 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 paragraphs 18 to19 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: 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.
  • It was made 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,
  • A question posed on behalf of the Appellant was noted: if the effect of passing the seven-year milestone is not to create some kind of presumption against removal what is its significance?  In response, the Court indicated that it agreed with the Secretary of States submission that the question failed to take into account the fact that the seven-year provision is, as it is put in Runa, 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, as the endorsement in KO (Nigeria)of the “narrower approach” confirms.
  • In relation to the submission that on the facts of the case if the Upper Tribunal Judge had applied the “powerful reasons doctrine” he would have had to allow the appeal, the Court concluded that there was no such doctrine meant that that question does not arise.
  • It was noted that the Appellant’s case in the First-tier Tribunal was that the return of the family to Bangladesh would cause difficulties and disruption for the children, and particularly for YS, who had some medical problems. The Court of Appeal however stated that the conclusion of both tribunals was that those difficulties were not such that it would be unreasonable to expect YS to return or to render his removal otherwise disproportionate.

Conclusion

Many a case has been won relying on the “powerful reasons doctrine” in MA(Pakistan). Unfortunately, that “doctrine” has now been laid to rest.

Unless there is more to the facts, the parents in NA(Bangladesh) seem to have remained in the UK without leave for a considerable number of years, during which time it seems, no applications to regularise their status were made to the Home Office until after YS was well over the age of 7years.  Many applicants relying on the 7year rule will similarly have remained under the “radar” for many years. Unless able to establish that it would be reasonable to expect the relevant child to leave the UK, NA(Bangladesh)’s restatement of principles relevant to the “reasonableness test” has potentially devastating consequences.

The Court of Appeal did note that on 11 November 2020 YS became a British citizen, but stated that was common ground that that fact was immaterial since it post-dated the decision which was the subject of the original appeal.

If YS’s parents were to submit a further application relying on the fact that they now have a British citizen child, would that application have a better chance of success? In such circumstances, the application itself to the Home Office would no longer include reliance on the 7year rule, but on exceptional circumstances(section 117B(6) would however kick in again at appeal if the application is refused, with the result that the same conclusions could be reached even if reliance is being placed upon family life with a British child).

On raising exceptional circumstances, the provisions of Appendix FM would be relevant:

“GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application”.

Family Policy, Family life (as a partner or parent), private life and exceptional circumstances, relevantly defines the meaning of “relevant child”, “exceptional circumstances” and ‘unjustifiably harsh consequences’.

Alternatively, as YS is a British citizen child, an application may be made under the EU Settlement Scheme by the parents as a “person with a Zambrano right to reside”.