The above question is the most important question to be considered in any immigration case involving children with this lengthy period of residency. In this blog post, Blair Melville, considers an important new case from the Upper Tribunal which provides a positive frame-work to answering this question.
Seven years is a long time for a child, in most cases a child who has lived here for that period will have little, if not, no memory of a life lived anywhere else. To uproot that child from their friends, school and all that they know, will in the vast majority of cases be against their best interests. Most Home Office decision-makers and some Judges consider however, that where the child’s parents have a poor immigration history and the child would leave the UK as part of a family unit, that irrespective of the child’s best interests, the balance ought to come down in favour of the state, the outcome being that the child will be removed from the UK with the rest of their family.
In a case decided in March 2016, but only recently published, the Upper Tribunal confirms the principal, that the whole family must be looked at as a whole when considering human rights claims under Article 8 both within and out with the rules. The Tribunal, however, significantly went on to find that when considering the “reasonableness” of removal under S117B of the Nationality, Immigration and Asylum Act 2002, that “reasonableness” here means “reasonableness” in respect of removal of the child only. There is no requirement to balance here the reasonableness of the child’s removal against the public interest in immigration control.
The facts of the case are not unusual in cases of this type. The family here consisted of a husband, wife and three children; two sons born in Pakistan and a daughter born in the UK. The husband entered the UK in 2004 with his wife and two sons (born in 1999 and in 2001) joining him in 2005. The youngest family member, a daughter was born in the UK in 2011.
At the time of the decision, neither the parents nor their youngest child had been in the UK for a sufficient length of time to engage the rules, the matter primarily concerned the two boys, who had been in the UK for 7 years at the date of decision. Seven years is of course a milestone for children in Immigration law due to the fact that this period of residence by a minor has been enshrined in Statute.
The relevant provisions are first s. 117B of the Nationality, Immigration and Asylum Act 2002, the only parts with which concerned being:-
(1) The maintenance of effective immigration controls is in the public interest.
(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.
There was no question that both boys in the case were ‘qualifying children’, being under the age of 18 and having been here for over seven years by the date of the decision (see s. 117D); nor that, on the judge’s findings, their parents have a ‘genuine and subsisting parental relationship with them’.
So far as the boys’ own position was concerned, the judge referred to paragraph 276ADE of the Rules: the relevant part being this:
276ADE (1). 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:
(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
The only question left to answer was whether it is ‘reasonable’ to expect these children to leave the United Kingdom. The Judge at the First-tier, as happens frequently, had sought to balance the children’s best interests with the ‘blatant disregard’ of immigration laws shown by their parents. In this case the Upper tribunal considered that although the FTT was right to adopt a balancing approach, as parliament had specifically legislated in Section117B(6) for circumstances where removal is not in the public interest, the Judge erred in taking into consideration the parents disregard for immigration laws.
The decision rather eloquently sums up the current position at paragraph 17:-
It seems quite clear from the decision in Treebhawon itself, and from the juxtaposition of ss. 117B and C, that 'reasonable' in s. 117B (6) means reasonable from the point of view of the qualifying child. While courts and tribunals have to balance the different aspects of the child's own interests, taking into account the situation of the family as a whole, as the judge did in this case, we are not required, in a case covered by that sub-section where deportation is not in issue, to balance those interests against those of society. That is of course something which will still have to be done in cases where there is no qualifying child; and, where any children have been here for less than seven years, very much in the light of Parliament's prescription of that as the qualifying period for consideration solely on their own merits. (writer’s emphasis in bold)
Since the introduction of Human Rights considerations into the Immigration Rules, there has been a considerable amount of litigation in respect of family life, particularly children. This case is a very significant and welcome addition to the jurisprudence together with the relatively recent decisions of PD & Others and Treebhawon.
A word of caution though, the case is “unreported” this means, unfortunately that for legal representatives to use the case, they will have to seek specific permission of the Tribunal. However, although it is “unreported” it does involve a very senior Immigration Judge and his sensible approach to the frame-work required to answer the questions has now largely been adopted in the more recent case of PD and Others (Article 8 – conjoined family claims) Sri Lanka  UKUT 00108 (IAC) and following on from Treebhawon and others (section 117B(6))  UKUT 00674 (IAC). The direction of the court appears to now be clearing.
Here at Drummond miller we have a wealth of background in Human Rights cases, if you think that this case may affect you or you would like to discuss any immigration matter referring to you or your family please do not hesitate to contact one of our Immigration team who can assist.