There is a considerable number of undocumented Zimbabwean nationals who were born in Zimbabwe, and following arrival in the UK, now have children of their own born here, aged under 18years. Some of these children may not yet have accrued the necessary continuous residence in the UK required to enable them to place reliance upon the 7year Rule as a basis of application for leave to remain. In such circumstances, fulfilment of the 10years continuous residence in the UK required to enable an application for registration as a British citizen would accordingly be inapplicable.
Despite the formalisation and introduction of the 7year provisions into the Immigration Rules, in practice the Home Office seem to abhor the very Rule that Government has entrenched into the legal framework. Where applications placing reliance upon the 7year Rule are refused, at appeal, Home Office Presenting Officers rarely take issue with establishment of fact of the child’s UK residence itself but fervently seek to sustain an attack focused upon the parent’s past conduct and behaviour, with the intended result that the public interest in removal becomes stronger.
The ancestry of Paragraph 276 ADE (1)(iv) is well set out between paragraphs 8 to 17 of PD and others v Secretary of State for the Home Department UKUT 108 (IAC). In PD, the Upper Tribunal clarified at Para 12 of their judgement “…….in applications for leave to remain based on Article 8 private life, it has not been sufficient for a child applicant to have accumulated seven years continuous residence in the United Kingdom. Rather, the applicant has also had to demonstrate that he or she could not reasonably be expected to leave the United Kingdom”.
In an unusual case, concerning a foreign national criminal, where the effect of deportation was intended to separate mother from British child, in MG, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 31 (Admin) , the Administrative Court concluded that the Secretary of State’s refusal to treat the Claimant’s submissions in relation to her relationship with her daughter as a fresh claim in light of the evidence submitted was irrational and should be quashed and re-taken.
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.
“It is very depressing. The law has been clear for the best part of 50 years ………It should go without saying, but I fear there is need to spell out what ought to be obvious ……So far as I am aware, none of these principles have ever been challenged or doubted. Is it too much to demand that people pay more attention to them?”, so queried the President of the Family Division in apparent exasperation in The Secretary of State for the Home Department v GD (Ghana) (Rev 1)  EWCA Civ 1126 (25 July 2017). This was said during the course of seeking to reiterate the effect of family court orders in deportation and removal cases.