7 Years Children and Parents Continuous Residence in the UK

By Maryem Ahmed of OTS Solicitors

The new case of PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC) demonstrates that despite the Home Office’s best efforts to curb Immigration by applying clinical policy and theory to family relationships, the courts acknowledge that in the real world, families must be considered as a whole unit when it comes to Immigration decisions.

The case clarifies various aspects of the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with seven years of residence. It should offer some comfort to families whose children have been settled in the UK for many years and are facing deportation by the Home Office.

The facts of PD and Others (Article 8 – conjoined family claims) Sri Lanka

The Appellants were Sri Lankan nationals who entered the UK on student and student dependent visa in 2005 and were legally residing in the UK until 2010. The child at the centre of the case was three years old at the time they entered the country and was 14 when this case came to Court, having spent 11 years of his life in Britain.

Since 2010 the Appellants were classed as overstayers.

In 2013, the Appellants applied to remain in the UK under the seven-year rule, which is contained in paragraph 276ADE of the Immigration Rules. This policy reads as follows:

Family life with children

Where a person asserts that they have family life with children, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below:

(a) They have a genuine and subsisting parental relationship with a child who is under 18.

(b) The child is in the UK.

(c) The child either

1. is British; or
2. has lived in the UK for at least 7 years preceding the date of the Immigration decision.

(d) It would not be reasonable to expect the child to leave the UK.

(e) There is no other family member who is able to care for the child in the UK.

This application, which also invoked Article 8 of the European Convention of Human Rights (ECHR) was rejected by the Home Office and the applicants subsequently appealed.

The issues for the Upper Tribunal to consider

The arguments of the parties’ representatives in the Upper Tribunal at the oral hearing focused mainly on the issue of whether or not the rights of the 14-year-old child should have been considered first, together with the test of reasonableness enshrined in paragraph 276 ADE (1)(iv) of the Immigration Rules.

As for the parents, as neither one could succeed in a claim under the Immigration Rules, they had to rely on Article 8 ECHR.

The factors the Upper Tribunal considered

The Home Office suggested that the 14-year-old child’s claim be separated from the claim of his parents and considered in isolation. The President of the Upper Tribunal, in delivering his judgment stated that it would be “artificial”, “unrealistic”, “a fiction”, “imaginary”, “surreal”, in breach of public law, in breach of the section 55 duty to have regard to the welfare of children and in breach of Article 8 itself to treat the cases of the family members entirely separately from one another:

“It is the very essence of Article 8 ECHR claims based on the family life dimension of this Convention provision that there are relationships, bonds and ties joining together the members of the family unit in question. In circumstances where the claims of several family members coincide, it would be artificial and unrealistic to determine them on their individual merits, in a rigid sequence and in insulated packages, without reference to the other claims.” [21]

In making this statement, the Court ensured that when it comes to children, Immigration is in line with all other UK law in making the rights of the child the paramount consideration.

When deciding whether or not it was reasonable for the child to leave the UK, the President held that the term ‘reasonable’ in the context of paragraphs 276ADE was to be given its normal meaning. He then went on to say:

“We consider that the application of the reasonableness test involves a balance of all material facts and considerations. The application of this test will invariably be intensely fact sensitive, see EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, at [7] – [12], per Lord Bingham. Ultimately, the factors to which we give determinative weight are the length of the third Appellant’s residence in the United Kingdom (some 11 years), which has spanned three quarters of his life; his deep immersion in all aspects of life in this country; the critical stage of his personal and educational development which has been reached; his minimal connections with his country of origin; and the likelihood that he will make a useful contribution to United Kingdom society.”

The Court also noted the fact that the child had spent three quarters of his life in Britain and had been shaped by the country’s culture, values, pastimes, living standards, language and the education system, the latter of which he was excelling in. It was established that his integration into the culture of the UK was total and his connection to Sri Lanka was virtually non-existent.

Conclusion

The Upper Tribunal held, rightly in our opinion, that the child’s best interests, “viewed through the lens of Article 8 private life, would be served by remaining in the United Kingdom. The four dominant factors, summarised, were his length of residence in the United Kingdom, his full integration in United Kingdom society, his age and his minimal ties with his country of origin.”

We are relieved that the Court applied compassion and common sense to this case and recognised that the alternative options of:

a) letting the child remain in the UK and deporting the parents; or

b) removing the child from his stable and successful life in Britain

would be abhorrent and contrary to both international and domestic law on the rights of the child.

However, this case is unlikely to prevent the Home Office attempting to split families if doing so will reduce Immigration figures by even a small amount. It is imperative, therefore, that individuals making Article 8 applications or appeals do so with an experienced Immigration law specialist.

OTS Solicitors are made up of some of the best Immigration lawyers in London and provide expert advice on all aspects of Article 8 applications, applications for leave to remain and all other Immigration law issues.

We invest heavily in up-to-date technology and research, which allows us to provide exceptional service, Immigration law advice and application processes to our clients.

If you wish to talk to us about your situation, please phone our London office on 0203 959 9123 to make an appointment with one of our Immigration specialists.