LBW

Tuesday, 7 October 2014

UK IMMIGRATION - 7 YEAR RESIDENCE RULE FOR CHILDREN

Until 2008 children who resided in the UK for seven years would permitted to remain under a Home Office policy called DP5/96, as would their parents. There were certain public interest ‘escape’ clauses for the Home Office – if the parents had deliberately gone to ground, committed offences or similar – but most applications under this policy would succeed. Seven years was recognised as an important if arbitrary period of residence for children by the previous President of the Upper Tribunal in EM (Zimbabwe) CG [2011] UKUT 98 (IAC) and continued to be recognised in other cases including Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC). When the Immigration Rules were changed in July 2012, seven years of residence by a child was formally incorporated into the rules as a sufficient period to justify continued residence by the child and parents.

In December 2012, though, a new criterion of whether it would be reasonable for the child to leave the UK was added by Statement of Changes HC 760 (see Sarah Pinder’s write up at the time here). Since then, the new statutory human rights presumptions at Part 5A of the 2002 Act also incorporate this new two stage test of seven years residence and that it would not be reasonable for the child to leave the UK.
My argument here is that there in this context the reasonableness test need not be interpreted as a particularly high threshold and that in many cases where seven years residence is achieved, an application should succeed under the Immigration Rules without any need to refer to or import human rights considerations.

Periods of residence compared

If we first consider some of the other significant periods of residence that apply to adults and children we can see that residence after seven years would be a sensible precursor to settlement or citizenship and it falls high to midway between the periods of lawful residence necessary for adults to obtain settlement with their family members. The seven years of residence for children can be lawful or unlawful – but a child is of course unaware of and not responsible for his or her own compliance or otherwise with immigration law requirements.
The general approach to continuous and long lawful residence is that adults will qualify for settlement after ten years continuous lawful residence in temporary categories: paragraph 276B. This rule also applies to children in their own right. Since July 2012, adults need to reside for 20 years to achieve settlement if any or all of the residence is unlawful.
In addition, adults will qualify for settlement after five years continuous residence in certain skilled migration categories, such as Tiers 1 and 2 of the Points Based System. Entry under the family routes in Appendix FM also leads to settlement after five years. The dependent child of such an adult will also qualify for settlement at the same time, but here their situation is dependent on that of the adult.
Some adults can qualify for settlement even before five years of residence. Since the extension of the “probationary period” for spouses in 2012 this is now restricted to Tier 1 Investors able to make a substantial investment of £5 million or £10 million.
It is also relevant to consider that children born in the UK will qualify for registration as full British citizens after ten years of residence, whether their residence is lawful or not: s.1(4) of the British Nationality Act 1981. A rule permitting settlement after 7 years would therefore be a sensible precursor to full citizenship. Adults need at least six years of residence before they can naturalise, but the residence has to be of a certain type (lawful with the final 12 months being free of any conditions).

Public interest

There are also public interest reasons in favour of permitting children to settle after seven years.
It makes sense that children might qualify for settlement after 7 years in contrast to 10 years for adults, particularly given that children, unlike adults, will qualify for full citizenship after 10 years if born in the UK. For example, resources go into the education and welfare of children resident in the UK which will be repaid later in the child’s life if the child is permitted to remain but which will be ‘wasted’ if the child leaves. As a comparison think of Rowntree’s pre welfare state poverty cycle, showing that children might be born into poverty, might rise out of poverty as they and their siblings start to work and earn money but then fall back into poverty as they have their own children and support their own parents, re-starting the cycle.
Going beyond the desiccated calculating machine of benefit to the public purse, settlement before citizenship is a sensible integration measure which is the normal scheme for adults and it permits access to the full welfare safety net in the event it is needed, which is a sensible child protection measure.

Best interests and perspective of the child

Further, from a child’s perspective seven years of residence can be literally a lifetime. It is the sum of all the child’s experience and is all they know, rather than merely a given seven year period in the life of an adult. Personally I do not buy into the approach of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC), in which it is suggested that residence from birth for a child is less significant than residence later on. This explicitly falls into the trap of treating children as mere parcels or as appendages of their parents rather than autonomous bearers of rights, as required by the UN Convention on the Rights of the Child. It is not an approach that is explicitly endorsed by the Court of Appeal in EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874 (write up here)
A young child in particular does not exercise choice about country of residence in the way that an adult does: an adult might make an informed choice to move to another country in the knowledge that he or she may have a precarious status and should not put down roots. That is not true of a child.

Just like any other rule

The incorporation of the seven year period into the Immigration Rules is highly significant because it normalises that period and turns it into an ordinary immigration category just like all the other immigration categories.
There is no hierarchy to the Immigration Rules. Each immigration category is as ‘good’ or valid as any other. Although different conditions and periods of leave might result, each immigration category is a ‘legitimate’ one that leads to a grant of leave of some sort. Paragraph 276ADE and Appendix FM EX.1. are not inferior, residual or failsafe categories: to think this is to read some additional extra-statutory requirements into the rules that are simply not there. Just as with any other immigration category, if a person meets the relevant criteria they are entitled to leave to enter or remain, absent other reasons for refusal such as the general grounds.
Accordingly, the word “reasonable” in paragraph 276ADE and EX.1. is subject to the normal rules of statutory interpretation and is to be given its normal meaning. It is a term or test like many others in the Immigration Rules, such as ‘adequate’, ‘sole responsibility’, ‘genuine and subsisting’ and so on. Importantly, it does not import any sort of ‘exceptionalness’ threshold or similar because it is a normal application that is made under the Immigration Rules. There is no justification for the Home Office’s preferred ultra-stringent approach.
An application inside the rules cannot be a human rights application outside the rules. The public interest in maintaining effective immigration control is not relevant, because to take that into account is to prejudge the outcome of the application under the rules and the application of the residence and reasonableness tests. We do not consider ‘effective immigration control’ when looking at other immigration categories, after all, because the whole point of the application (and if necessary appeal) is to determine whether the criteria in the rules are met. An application under paragraph 276ADE or EX.1. is simply a normal application for variation into a recognised category of the Immigration Rules. The ‘legitimate aims of the state’ or various public interest considerations do not need to be weighed.
Lastly, the statutory presumptions of the new Part 5A to the Nationality, Immigration and Asylum Act 2002 are not relevant to an application under the Immigration Rules such as under paragraph 276ADE or EX.1. Part 5A sets out presumptions that apply where a person relies on a separate human rights argument and a judge has to decide a genuine Article 8 case. Paragraph 276ADE comes under a side heading of human rights in the Immigration Rules (EX.1. does not, nor do the deportation rules) but the assessment of an application under paragraph 276ADE is a very different process to the assessment of Article 8. The case of Gulshan is perhaps correct insofar as suggesting that the consideration under the rules is one thing, the consideration under distinct human rights provisions a very different thing.
The Home Office may well not have appreciated this unintended consequence when the new immigration categories were created, but that is no surprise.

Conclusion

Where a person with leave applies for an extension of leave on the basis of paragraph 276ADE and/or EX.1., that application should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child to have to start over with their life again in another country.
An experienced immigration adviser would and should recommend that a person with lawful leave apply to extend their leave in a different category, however: my arguments here are untested and if there is another basis on which leave might be extended I myself would recommend pursuing other options.
Thanks to Freemovement UK

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