Children’s residence in the UK: Facets of the 7Year Rule
alicemuzira
A parent may be entitled to stay in the United Kingdom in circumstances where they do not qualify for leave in their own right but by “latching” onto the rights of a qualifying child who has resided in the UK continuously for over 7years.
The most relevant considerations in this regards are Paragraph 276ADE(1)(iv) of the Immigration Rules and Section 117B(6) of the Nationality, Immigration and Asylum Act 2002.
Just because a relevant child has accrued the necessary period of residence does not however mean that an application under the 7year rule will succeed following submission of an application to the Home Office or after an appeal has been heard. Sometimes, an application can be refused by the Home Office with the ultimate appeal also not producing what an applicant desires.
On the other hand, the Home Office may consider such an application and grant a family unit leave without any seeming hesitation. At times, some such appeals may succeed however in practice these are the types of cases, the Home Office usually devote attention to when applying to the Upper Tribunal for permission to appeal seeking to overturn successful appeals.
Looking at the bright side, just because an appeal under the 7year rule has failed does not mean that the child is unable to subsequently obtain registration as a British citizen at some near future point or that the parents or other siblings will not obtain leave to remain eventually as a result of relying upon their family member who has been granted citizenship.
It is important to note however that the following considerations can be taken into account by the Home Office or a Tribunal Judge as relevant when having regard to the 7year Rule, in particular when applying the “reasonableness test”:
Parental misconduct taking the form of illegal entry, unlawful overstaying or illegal working
Private life formed or developed during periods of unlawful or precarious residence in the UK
The child’s best interests may be to remain in the UK, but they could be refused leave to remain, in particular in circumstances where their parents are taken to have shown a disregard of immigration laws, by remaining illegally in the UK
Relevant statutory provisions:
As regards paragraph 276ADE(1)(iv) of the Rules, the provisions provide relevantly:
“The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and ……………………..
(iv) is under the age of 18 years and 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 applicant to leave the UK………………”
Part 5A of the 2002 Act provides as follows:
“PART 5A
ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1)The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) 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.
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117D Interpretation of this Part
(1) In this Part—
“Article 8” means Article 8 of the European Convention on Human Rights;
“qualifying child” means 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;
“qualifying partner” means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act)”.
Section 117B relates to those not liable to deportation. The main category of persons liable to deportation are foreign criminals. They are subject to an additional set of public interest considerations found in section 117C, supplementing those in section 117B.
Some Key Court of Appeal and Supreme Court decisions:
In regards to paragraph 276ADE(1)(iv) and Section 117(B)(6) , the child in question must have been living in the UK for more than seven years in order for the provisions to bite, ie both require seven years’ residence.
Both provisions are similarly framed.
In both, a critical question is whether it would be unreasonable for the child to be expected to leave the UK.
the question whether it is reasonable to expect the child to leave should be approached in the same way in each context.
Differences:
The concept of seven years’ residence may not be calculated in precisely the same way in the two provisions. Rule 276ADE(1) states in terms that the period must be assessed as at the date of the application.
AS result of section 85(4) of the 2002 Act, the relevant date for the purpose of section 117B is the later date when the court is making its determination.
Only the child can apply under Rule 276ADE (iv), whereas section 117B is concerned with Article 8 applications under which both the child and the parents can apply.
Rule 276ADE is concerned with applications made on the basis of private life, whereas claims under Article 8 may rely on both private and family life.
Section 117A states in terms that section 117B applies to courts and tribunals. The Court in MA(Pakistan) noted that, “ Curiously the Secretary of State is not in terms bound by these rules but it would be bizarre for her to depart from Parliament’s view of the public interest as reflected in the legislation, and if she were to do so in a manner prejudicial to the individual, it would simply invite appeals”.
As per MA(Pakistan), Section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the subsection itself- paragraph 17.
What does the later case of Rhuppiah say about Section 117B(6)?
Although the appeal in Rhuppiah gave rise to issues of interpretation of the provisions in sections 117A to 117D in Part 5A of the 2002 Act, the Court of Appeal had this to say about Section 117B(6) at paragraph 51:
“A similar point arises in relation to section 117B(6). Where this subsection applies, Parliament has stated that “the public interest does not require the person’s removal” (my emphasis). This court has held that by this provision Parliament has again specified what the outcome should be (i.e. non-removal): see R (MA (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 705, [17]-[20]. It would not be open to a court or tribunal to hold that, contrary to the statement in this subsection, the public interest does require removal”.
What must Courts and Tribunals ask when applying section 117B(6)?
As per paragraph 19 of MA(Pakistan), the only questions which courts and tribunals need to ask when applying Section 117B(6) are the following:
Is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C.
Does the applicant have a genuine and subsisting parental relationship with the child?
Is the child a qualifying child as defined in section 117D?
Is it unreasonable to expect the child to leave the United Kingdom?
If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that Article 8 is infringed.
How is the reasonableness test i applied?
The factors that a Court or Tribunal is entitled to take into account when applying the reasonableness test are as follows:
Conduct of the parent and wider public interest considerations as per MA(Pakistan):
As per paragraph 45 of MA(Pakistan), “In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6). ………..But the critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the “unduly harsh” criterion. It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6). It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State’s submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted”.
The critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the “unduly harsh” criterion. It is equally so with respect to the reasonableness criterion in section 117B(6).
Wider pubic interests considerations- MA(Pakistan) binding says Court of Appeal in AM(Pakistan):
It was accepted by the Court of Appeal in AM(Pakistan) that the two teenage children relevant to the case, were qualifying children who satisfied the seven year rule, and that the parents had a genuine and subsisting parental relationship with them. Notwithstanding that the children’s best interests were to remain in the UK, the First Tier Judge held that they should be refused leave to remain . The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused. It was noted that in reaching her conclusion the FTT judge followed guidance given by the Court of Appeal in EV (Phillipines)and others v Secretary of State for the Home Department [2014] EWCA Civ 874 as to how the balancing exercise should be carried out.
On appeal, the Upper Tribunal was however satisfied that when properly construed, section 117B(6) and paragraph 276ADE(1)(iv) required the court to ask whether it was reasonable or not only from the point of view of the qualifying child. On that analysis, the Upper Tribunal concluded that the appeals of the two teenage boys had to succeed in the light of the findings of the FTT judge.
On appeal the Court of Appeal noted the Secretary of State’s two grounds of appeal:
First, it was said that the Upper Tribunal erred in assessing the question of reasonableness by focusing solely on the position of the child. The FTT had adopted the correct approach in looking at wider public interest considerations.
Second, the Upper Tribunal was wrong to treat section 117B(6) as a self-contained provision to be read independently of the other matters identified in that section. The considerations in section 117B(6) ought to have been treated as just one relevant factor when considering whether an interference with article 8 was justified. Properly construed, it did not take priority over the public interests considerations.
The Court of Appeal in AM(Pakistan) noted as follows at paragraph 20:
It was noted that these two grounds were considered by Court of appeal in MA (Pakistan).
It was observed that court’s analysis is consistent with the first ground of appeal succeeding, but the second failing. The court in MA(Pakistan) admittedly reluctantly, concluded that it was inherent in the reasonableness test in section 117B(6) that the court should have regard to wider public interest considerations and in particular the need for effective immigration control. The Court would not have reached that conclusion absent authority, but felt obliged to follow another decision of the Court of Appeal in MM (Uganda) v Secretary of State for the Home Department[2016] EWCA Civ 617; [2016] IMM A R 954.
MM(Uganda) was noted to be a case concerning foreign criminals which engaged section 117C rather than 117B, and in particular to the need in section 117C(5) to show that it would be “unduly harsh” rather than simply not unreasonable, to require the qualifying child to leave the UK. However the court in MA (Pakistan) considered that the structure of the relevant provisions was sufficiently similar to require a common approach. Accordingly, since the Court in MM(Uganda) had held that wider public interest considerations relating to effective immigration control could be taken into account when deciding whether or not it was unduly harsh to send an applicant back to the country of origin, so likewise should they be taken into account when considering under section 117B whether it is not unreasonable to do so. But the court in MA(Pakistan) also held that section 117B(6) was a self-contained provision in the sense that where the conditions specified in the subsection are satisfied, the public interest will not justify removal. The wider public interests considerations can only come into play via the concept of reasonableness in section 117B(6) itself. It was noted in AM(Pakistan) that in the light of this decision, the Secretary of State no longer pursued the second ground of appeal.
The Court of Appeal in AM(Pakistan) also considered the argument of whether MA(Pakistan) was binding upon them:
On behalf of the Applicants was advanced an argument to the effect that the Court was not bound by the decision in MA (Pakistan). The essence of it was that although that judgment was binding on the court so far as the proper construction of section 117B(6) is concerned, it was not a binding decision as to the construction and application of the reasonableness rule in paragraph 276ADE (1)(iv).
The Court observed that it was true that in MA (Pakistan) the court noted at paragraph 13 that it had simply been a common assumption that the construction of the rule should reflect the construction of the primary legislation. But in fact two of the appellants in that case were relying solely on paragraph 276ADE and so the decision as to its proper meaning was considered binding on the Court in AM(Pakistan). In any event, the logic of the argument was noted to be that the criteria in the rule would be easier to satisfy than the criteria in the section passed by Parliament, notwithstanding the use of the same concept. The Court in AM(Pakistan) did not accept that the draftsman could possibly have intended such a result which would give the public interest a more limited influence than Parliament has required. In the Court’s judgment, on the assumption that the construction of section 117B(6) adopted in MA (Pakistan) is correct, it must apply likewise to rule 276ADE.
The Court was bound by the decision in MA (Pakistan) as to the proper construction of the provisions in issue, and necessarily it followed that the decision of the Upper Tribunal could not stand.
Two stage exercise, relevance of ‘Sins of the Parents’ Principle, Parental Misconduct and public interest considerations- Kaur v SSHD:
Two stage exercise:
As per Kaur v SSHD, in considering the interplay between Section 117B(6)(a) and Section 117D(1) of the 2002 Act, there is a two-stage exercise involved:
Firstly, where the child in question a qualifying child, the answer to that question is provided by applying the definition that is enshrined in section 117D (1) of 2002 Act. The second stage involves giving effect to the test contained in Section 117B(6)(b) of the 2002 Act. This provision, which, does not apply to those liable to deportation, expresses “thepublic interest”, as follows:
“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.”
The Upper Tribunal in Kaur noted the absence of any accompanying list of factors to which regard must be had in determining what is “reasonable”. In principle, therefore it was observed that decision makers and Judges have a wide margin of appreciation in this respect.
The Upper Tribunal also noted that the Court of Appeal had given effect to EV (Philippines) in the decision of MA (Pakistan).
The best interests assessment of the child is to be carried out first – factors of parental misconduct enter the later stage of the overall proportionality balancing exercise:
The Upper Tribunal in Kaur, considered the impact the “sins of the parents” principle had on an appeal. It was observed that Zoumbas concerned a family unit consisting of two foreign national parents whose presence in the United Kingdom throughout the relevant period, some ten years, was at all material times unlawful. Equally, the presence of the three children born to them in the United Kingdom – aged seven and four years and six months respectively – had been unlawful throughout the entirety of their short lives.
Having set out the 7 principles in the decision of the Supreme Court in Zoumbas as relevant factors when the interests of a child are involved in an Article 8 assessment, it was noted in particular that the seventh principle is expressed in the following terms:
“A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent”.
The Upper Tribunal in Kaur, observed as follows:
General legal principles are not to be equated with absolute legal rules.
The assessment of a child’s best interests must focus on the child, while simultaneously evaluating the reality of the child’s life situation and circumstances. Factors such as parental immigration misconduct must not intrude at this stage. See EV (Phillipines) (infra) at[33]. This requires care and discipline on the part of decision makers and Judges. The child’s best interests, once assessed, are an important component of the overall proportionality balancing exercise. However, they have a free standing character. Avoidance of error is likely to be promoted if the best interests assessment is carried out first. Parental misconduct typically takes the form of illegal entry, unlawful overstaying or illegal working. Factors of this kind may legitimately enter the equation at a later stage of the overall proportionality balancing exercise as they are clearly embraced by the public interest in the maintenance of immigration control. This is the stage at which a child’s best interests, though a consideration of primary importance, can potentially be outweighed by the public interest.
In every case of this kind, there is an Article 8(2) proportionality balancing exercise to be performed. At the outset of the exercise, the scales are evenly balanced. The exercise is then performed by identifying all material facts and considerations and attributing appropriate and rational weight to each. The best interests of an affected child feature in the balancing exercise. It is incumbent upon the court or tribunal concerned to make an assessment of those interests. The balance must then be struck, treating the child’s best interests as a primary consideration. As these do not have the status of the primary consideration they are capable of being outweighed by other public interest factors, singly or cumulatively, in any given case.
ZH (Tanzania) and Zoumbas have survived the advent of Part 5A of the 2002 Act:
It was noted by the Upper Tribunal that ZH (Tanzania) and Zoumbas were both decided prior to the advent of the Immigration Act 2014 and, with it, the commencement of the new Part 5A of the Nationality, Immigration and Asylum Act 2002 . The legal landscape had now altered. Sections 117A and 117B, in tandem, mandate courts and tribunals which are determining proportionality issues under Article 8(2) ECHR to attribute little weight to a private life established by a person during any period of unlawful (section 117B(4) or precarious residence in the United Kingdom.(Section 117B(5).
It was observed that in Miah (section 117B NIAA 2002 – children) [2016] UKUT 131 (IAC) at [23] – [24], it was held that since the list of statutory considerations in Part 5A is not exhaustive, having regard to the words in parenthesis in section 117A (2) – “(in particular)” – factors such as an affected child’s age, vulnerability and other personal circumstances may in principle be legitimately considered. Factors of this kind are clearly capable, in principle, of counter balancing the ascription of little weight to private life developed during periods of precarious or unlawful immigration status. The Upper Tribunal stated that in this way the apparently blunt impact of section 117B(4) and (5) can be softened in an appropriate case.
The Upper Tribunal stated that the new Part 5A regime, Parliament has clearly expressed the view that the efficacy of immigration controls would be undermined if a private life formed or developed during periods of unlawful or precarious residence in the United Kingdom were to attract anything other than little weight. Section 117B(4) and (5) are to be viewed in this light.
Considered however in tandem with the decision in Rhuppiah, is that, through the medium of permissible judicial statutory construction, there is some flexibility in the “little weight” legislative instructions contained in section 117B (4) and (5) of the 2002 Act. Tribunals must be alert to this in their conduct of proportionality balancing exercises, in particular in considering whether the factors on the public interest side of the scales outweigh those on the other side, especially where the tribunal’s assessment of a child’s best interests points to a course other than the removal or deportation of the person or persons concerned.
The Upper Tribunal in Kaur considered whether the question of whether the “sins of the parents” principle acknowledged by the Supreme Court in both ZH (Tanzania) and Zoumbas had survived the advent of Part 5A of the 2002 Act. The Upper Tribunal considered an affirmative answer as appropriate. This was because:
Taking into account the entirety of the relevant context – historical, juridical and jurisprudential – within which there is a clearly discernible Parliamentaryintention and of the executive (via the Immigration Rules) to introduce maximum prescription in the field of immigration law, the burial, or adjustment, of this principle, which would have been achievable by a simple drafting mechanism, is nowhere reflected in the legislative language.
Further as emphasised in the decisions of Upper Tribunal in Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC) and Miah, the words in parenthesis in Section 117A(2) – “(in particular)” – have the clear effect that courts and tribunals are at liberty to take into account, where material, considerations other than those enumerated in Sections 117B and 117C.
The third reason is that in the Part 5A regime there is a clearly discernible legislative intention to confer on children special levels of protection. Section 117B (6) makes some contribution to this debate. As the recent decision of the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60 makes clear, the notion that a complete Article 8 code has been thus established is fallacious: per Lord Reed at [51] – [53] and Lord Wilson at [80]. The significance in the present context of Part 5A of the 2002 Act and section 117B (6) in particular is that Parliament, in enacting the new regime, focused special attention on children and, in doing so, had the opportunity to make explicit provision for the weight to be attached to the parental immigration misconduct issue embedded in the seventh of the principles compromising the Zoumbas code: it did not do so.
The Upper Tribunal noted that as the decision in Hesham Ali makes clear, the fundamental task for tribunals in appeals involving recourse to Article 8 of the Convention is, having made appropriate findings of fact, to identify the public interest engaged, to correctly measure its strength and, ultimately, to determine whether the private and family life factors advanced by the appellant outweigh the public interest to the extent that the impugned decision is disproportionate. While this is the general approach, in the particular context of deportation the public interest is especially potent and will be outweighed only by an Article 8 claim which is “very strong indeed – verycompelling”: per Lord Reed at [50]. Furthermore, in all cases the tribunal will give appropriate weight to the decision maker’s reasons for the proposed course of action.
The Upper Tribunal noted that in MA (Pakistan) [2016] EWCA Civ 705, a different constitution of the Court of Appeal held, with significant reservations, that the effect of being bound by MM (Uganda) was that the correct approach to Section 117B(6) should mirror the approved approach to Section 117C(5). Thus the Secretary of State’s argument that Section 117B(6) does not focus exclusively on the best interests of an affected child but embraces also the public interests prevailed. This argument, notably, acknowledged that the fact of seven years’ residence in the United Kingdom of an affected child qualifies for significant weight.
The best interests of any affected child constitute a free standing factor and should properly be assessed before the proportionality balancing exercise is carried out. This exercise will be vulnerable to challenge if the child’s best interests have not, first and foremost, been adequately and correctly assessed. Any issues of unlawful or precarious immigration status or parental misconduct have no role to play in this assessment. Such issues do, however, arise at the stage of completing the “balance sheet”. Issues of this kind are plainly relevant and they belong to the public interest side of the balancing sheet.
An outcome for a family which has a prejudicial impact upon a child member is not incompatible with the seventh principle of the Zoumbas code. Where, in any given case, the evaluation of parental immigration misconduct in the balancing exercise contributes to a conclusion which will involve the entire family unit departing the United Kingdom, this does amount to blaming the children. The Upper Tribunal considered that critically – absent some other vitiating factor – the assessment of the best interests of the children, always most aptly carried out at the beginning of the overall exercise, will be unassailable in law provided that the factor of parental misconduct has not intruded at that stage.
Does the fact that the child has been here for seven years carry significant weight when carrying out the proportionality exercise?
Paragraph 46 of MA(Pakistan) answers in the affirmative:
The fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. It was noted by the Court that the Secretary of State had 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).
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.
It was noted that 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.
If a child’s best interest are to stay, may it still be reasonable to expect the child to leave the UK?
MA(Pakistan), paragraph 47 provides:
Even where the child’s best interests are to stay, it may still be not unreasonable to require the child to leave.
That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents.
Proportionality test, wider public interest and the best interests of the child: Does EV (Phillipines) still apply even if it is not a 7year Rule case?
MA(Pakistan) observes at paragraph 49 as follows:
Although EV(Philippines) 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.
MA(Pakistan) further notes at paragraph 48, that in EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paras. 34-37):
“34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35.A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36.In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37.In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully.”
Best interests of the child- How do ZH(Tanzania) and Zoumbas factor in?
The decision in ZH (Tanzania) and subsequent decisions of the Supreme Court raising best interests considerations were considered by the Supreme Court in Zoumbas. The Court in Zoumbas approved the following seven principles which need to be borne in mind when considering the interests of the child in the context of an Article 8 evaluation (para.10):
“In their written case counsel for Mr Zoumbas set out legal principles which were relevant in this case and which they derived from three decisions of this court, namely ZH (Tanzania) (above), H v Lord Advocate 2012 SC (UKSC) 308 and H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338. Those principles are not in doubt and Ms Drummond on behalf of the Secretary of State did not challenge them. We paraphrase them as follows:
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.”
As noted at paragraph 53 of MA(Pakistan), paragraph (7) of Zoumbas justifies the observation of the Court in EV (Philippines) paragraph 33 that, “the best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent.” Accordingly, when making that assessment, it would be inappropriate to treat the child as having a precarious status merely because that was true of the parents.
The Court in MA(Pakistan) further observed as follows in relation to the considerations of best interest of the child:
There is nothing intrinsically illogical in the notion that whilst the child’s best interests are for him or her to stay, it is not unreasonable to expect him or her to go. That is so even if the reasonableness test should be applied so as to exclude public interest considerations bearing upon the parents.
As regards whether there is any particular order in which a court has to approach the proportionality exercise where the best interests of the child are in issue, the Court in MA(Pakistan) stated they did not think that it can now be said that courts and tribunals are mandated to look at matters in any particular way such that it is an error of law for them to fail to do so. It will usually be sensible to start with child’s best interests but ultimately it does not matter how the balancing exercise is conducted providing that the child’s best interests are treated as a primary consideration.
It is vital for the court to have made a full and careful assessment of the best interests of the child before any balancing exercise can be undertaken. If that is not done there is a danger that those interests will be overridden simply because their full significance has not been appreciated. The court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child’s best interests whatever they might be, with the result that no proper assessment takes place.
Where it falls on the court to determine the child’s best interests, and it does not consider that it has been provided with the necessary information properly to make that assessment, whilst a court can normally expect an applicant to provide the information required to enable the court to make the best interests assessment since the onus is on the applicant to prove any breach of section 55, there will be cases where the court will have to make enquiries on its own initiative. It may, albeit very exceptionally, be an error of law for the court to fail to make further enquiries in such cases, and this may involve the need to adjourn the hearing, although in the Court’s view the failure to do so would only be an error of law where the refusal or failure to do so was Wednesbury unreasonable or resulted in unfairness.
Conclusion
It appears that where the Home Office seem to seek to frustrate reliance being placed successfully upon the 7year Rule, either by reference to an outright refusal decision or an onward challenge to the Upper Tribunal in successful appeals before the FTT, this seems an exercise in futility in some cases:
Relevant human rights applications at the Home Office take months to be considered. Article 8 human rights appeals are taking a year or so to be heard in the First Tier Tribunal. By the time an appeal is concluded in the Tribunal, if negatively against an Appellant, the relevant UK child born may, before actual removal takes place, accrue at least 10years residence here such that they can now apply to register as a British citizen.
Those children who have missed out on the 7year Rule at certain periods in time and are about to turn 18years, can rely upon the Immigration Rules once again but this time upon paragraph 276ADE (1)(v). The applicant is required to show only that is he aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK , discounting any period of imprisonment. There is no need at all to satisfy the “reasonableness test”.
