Maybe you know the story. There is a family with young children who were born in the UK. They are all overstayers. But then the youngest child reaches their seventh birthday. The family are advised that the child can now make an application for limited leave in the UK on the basis of the “seven-year child rule”, and that if this application is successful then very likely the whole family will be granted limited leave in line with the child’s. Because the child has rights under the rules those rights may be transferred to the other family members.
Up until recently this advice was in many cases reasonable. Unless there were some strongly countervailing factors, overstaying families might well be able to benefit from this legal principle.
But then in June this year along came a decision from the Court of Appeal called “NA (Bangladesh)”, which rather upset the applecart. In this case the youngest child had been born in the UK “11 years ago” and was a British citizen. There were no countervailing factors (beyond the “standard” countervailing factor of the other family members being overstayers). A strong case, you might think? Well, the Home Office refused the application, the First-Tier Immigration dismissed the appeal and the Upper Tribunal dismissed the further appeal and thus the case came before the Court of Appeal.
Unfortunately things did not go very well in the Court of Appeal either. The Court relied on a recent previous decision of the Supreme Court (the top court in the UK, whose decisions are binding on the Court of Appeal) called “KO (Nigeria)”. The Court of Appeal said that this previous decision meant that the child could not succeed in his application.
The matter revolved around the issue of whether it would be “reasonable” for the child to have to leave the UK. The court’s reasoning at some point became difficult to follow. They said that the fact of a child’s residence in the UK for at least seven years was an important material factor that had to be taken into account. But it also said that in light of the new case law there was no longer any presumption in favour of the application being granted. And they also said that in this case the Home Office’s and the Tribunals’ rejection of the child’s case had been correct. And so the case failed.
As the Appellants’ barrister asked the court – so what is the purpose of the seven-year rule if such an apparently strong case can be unsuccessful? – and the court’s answer was obscure.
This does not bode well for migrants in similar situations. If you want advice and assistance in this area we at GSN Immigration will provide you with the best available advice.
OISC Level 3 Immigration Lawyer