This article details how the 7 year child policy works and the technical reasons behind the policy.
Dost Malik is an immigration specialist with a wealth of experience. He has recently looked at the rules around the 7 year child policy.
The Section 55 of the Borders, Citizenship and Immigration Act 2009 enacted the UN Convention on the Rights of the Child. This Act created a duty for public bodies to safeguard and promote the best interests of children in the UK. The Home Office realised that ‘migrant’ children are children too.
Therefore, the Home Office became duty bound to consider the best interests of a child who is in the UK. This includes all those parents and families who are over stayers in the UK as well!
In accordance with the Universal Declaration of Human Rights of the United Nations, which recognises that the child for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
The Article 3(1) of the UN Charter clearly says that all the actions taken by the government, courts, administrative authorities and legislative bodies, should have the best interests of a child as a primary consideration.
The Article 9 provides that a child should not be separated from his/her parents against their will, unless separation of the child is necessary for the best interest of the child. However, this action of the relevant authority will be subject for judicial review.
All these above principles are relevant to immigration cases, therefore Section 55 of 2009 Act created a statutory duty on the Secretary of State to safeguard and promote the welfare of children who are in the UK. This duty is referred to as the duty to take in to account the ‘best interests’ of a child in making an immigration decision.
A child’s best interests are not defined, but generally refer to the need for a safe environment, family and social relationships, development and identity needs.
If the Home Office fails to consider a child’s best interests in an immigration decision, that decision may be unlawful and therefore, subject to legal challenge.
In order to regulate this matter, the immigration rules at Paragraph 276 ADE provided that, the child should be under the age of 18 and has lived continuously in the UK for at least 7 years (discontinuing any period of imprisonment) and it would not be reasonable to expect the Applicant to leave the UK.
The parents of the child were also covered under section 117B of the Nationality, Immigration and Asylum Act as amended – if the person is not liable for deportation and the public interest does not require the person to be removed, that person will be granted Leave as well, if that person has a genuine and subsisting relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK.
It is quite pertinent to point out here that, where the child has not lived in the UK for 7 years, it is still possible to make the application under Article 8 of the European Convention on Human Rights, although it is more difficult to prove that removal of the child would be disproportionate.
I can appreciate and confirm with first-hand knowledge that the Home Office policy and decision regarding this category have remained very inconsistent and unreasonable. The Home Office policy ‘every child matters: Statutory Guidance’ confirms that section 55 includes:
- Preventing impairment of children’s health and development, where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’.
- Undertake that role as to enable those children to have optimum life chances and to enter adulthood successfully.
At this stage in spite of the Home Office policy to limit the best interests of children, I would like to emphasise the importance of the key judgements concerning the best interests of the child.
The landmark case in this context was ZH (Tanzania)  where the Supreme Court held that the best interests of children are the primary consideration and although they will not always determine the outcome of a case, no other factor should be given more weight.
Primary consideration means children’s interest must be considered first. Any decision which is taken without having regard to the need to safeguard and promote the welfare of any child will not be ‘in accordance with the law’. Both, the Secretary of State and the Tribunal will therefore have to address this in their decision.
The Supreme Court in Zoumbas  approved seven principles to be borne in mind when considering the interests of the children in the context of the Article 8.
Nigeria  was another landmark case which found that the section 55’s duty is unqualified duty. The Court of Appeal held that the following factors will be considered to determine as to what is in the best interests if the child.
- Length of time in the country;
- How they have been in education-what style of education have they received;
- To what extent they have distanced themselves from their country of origin;
- Their connection with their country of origin;
- To what extent they will have living, medical or other difficulties in adapting to life in that country;
- To what extent the removal will intervene with their family life.
This is a helpful checklist and any application should seek to address these facts with evidence.
The Court of Appeal in MA Pakistan  held that, the fact that a child has been here for 7 years must be given significant weight when carrying out the proportionality exercise. 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 detrimental if the child is required to leave the UK. This disruption gets more serious as the child grows old.
In the same judgement, Lord Justice Elias declared that the children are not to be blamed for the fact that their parents overstayed illegally, and their stay shall be legitimised unless there is a good reason not to do so.
Generally, the Court’s position is that after 7 years, strong reasons are required to justify removal of a child’s family in the UK.
In this context, the Supreme Court judgement in KO (Nigeria)  was very powerful to clarify this matter. ‘The conduct of the parents is irrelevant to that assessment of the impact on the child.’
However, on this issue, the Home Office has regularly been arguing in their decisions that, where the parents have no right to remain in the UK, it would be reasonable in most cases for the child to leave the UK with their parents.
Recently, on 13-15 February 2019 the Upper Tribunal heard the case on this issue and it is expected that the decision of the Tribunal will provide guidance on ‘reasonableness’ in light of KO (Nigeria).
I will strongly advice that any application on the basis of 7 years residence of the child should cover all the relevant law as mentioned above.
One should explain how the facts of this particular application relate to the law with reference to evidence.
All the relevant facts should be identified, e.g. child’s age, their social, cultural and educational links in the UK, the stage of their education, how removal would impact their development, any educational or developmental needs that they have which are being met in the UK, what difficulties they would face in the proposed country of return e.g. linguistic, cultural, financial and the child’s own views.
The proof of child’s continuous residence in the UK should be provided, which can include:
- A British Certificate;
- Red Book;
- Medical records;
- Letters from school confirming attendance;
- Evidence of entry to the UK.
In order to identify the best interests of the child, an independent social worker’s report provides key expert evidence.
This report can comment on the child’s educational, emotional medical/therapeutic and developmental needs, any vulnerabilities the child has, the parents’ capacity to meet these needs without support, the importance of any support network in the UK, the child’s ability to adapt to leaving the UK.
The most important is the impact of removal on the child’s wellbeing and development.
There is no fixed checklist but one should try to get support letters from all the organisations who are involved in the welfare and well-being of the child and the family.
The good news is that, recently the Home Office has relaxed their policy regarding this category and have started issuing visas.