Seven year children policy withdrawn

Free Movement — 

Free Movement may be cursed. Almost as soon as I blogged about DP3/96 it was scrapped, and now the same has happened to DP5/96. Phil Woolas has withdrawn DP5/96 as of 9 December 2008. This was the seven year policy under which a child resident in the UK for seven years would be granted leave to remain along with the rest of his or her family. You can read the Free Movement post about it here, although it is now mainly of historical interest.

The laughable justification, amongst other things, is that this will ensure ‘a more consistent approach’ to cases involving children. What, removing clear criteria will improve consistency? I don’t think so, Phil.

silver-liningHowever, there is a fairly shiny silver lining. The Home Office view as stated by Woolas is that the specific concession and 7 year guidance is being withdrawn and cases will now simply be assessed under Article 8 of the ECHR. It is not necessarily the Home Office view that children resident for over seven years now should be removed or that it is proportionate to remove them and their families. I think it would be fair to say that it is to be expected that the Home Office will now refuse all applications based on long residence by children, but that will not necessarily influence the tribunal and courts. Previously, the courts had clear guidance on what was at a policy level considered to be proportionate or not, and that was always bound to be influential with judges. Now that there is no clear Home Office view, judges are on their own and will simply have to decide on the facts and evidence.

A child resident for less than seven years is now probably in a stronger position than previously. Still, good child-centred evidence will need to be put forward in all cases now, whereas proof of length of residence was all that was required previously once the seven year mark was reached.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

19 responses to Seven year children policy withdrawn

  1. TiDyMe

    So more child poverty & family instability then. I also suspect more work for immigration lawyers, although I don’t think that’s the silver lining FM is referring to.

    LondonHOPO warned us this could happen. Is this because he is the mole, or he just knows Mr Woolas well?

    Given the Baby P tragedy, and the Damien Green fiasco, I feel Mr Woolas’ timing could not have been worse. Well, he does like ID cards, and Gay rights, but one would expect better from a family man with kids.

    Perhaps the new (subjective) approach is to become “more consistently inconsistent”. Still, more work for the AIT, judges and the courts.

    Not sure on this one, but presumably the deportation block/restriction on children who have been here seven years or more is still effectively in place. If so, more illegals kept from regularisation then.

  2. Well this DP is still here….i’ve not been outruled, yet.

    Unrelated, but nontheless amusing ;), looks like the Home Office have had another ‘accident’ – re: FOI requests.

    http://www.bbc.co.uk/blogs/opensecrets/2008/12/ministers_approve_foi_answers.html

    And FM i think you’re suffering from commentators curse.

  3. Mr T,

    The withdrawal of the enforcement DP Policies / Instructions had been in the wind for a long time – matters came to a head with the decision of Sedley LJ (loathed by the HO loved by “Immigration Lawyers”) in AB Jamaica (CA Civ 2007 – http://www.bailii.org/ew/cases/EWCA/Civ/2007/1302.html) a decision that simply went to far in the eyes of the HO.

    It is important that everyone is clear that Immigration Decisions made prior the withdrawal of 5/96 on 9th of December (and 3/96 and 2/93 in April 08) are un-affected by this policy change – i.e. at appeal if the policy was in place on the date of decision – if any appellant was arguably on all fours with the policy, the point can’t be advanced and an Adjudicator invited to allow an appeal.

    Mole? Knows Woolas well? Err no, just one of several hundred hard working POs kept cosy during these winter months by the warmth of FM’s admiration.

    LondonHopo

  4. Jane Heybroek
    BeautifulBurnout 10 December 2008 at 9:13 pm

    I am finding it hard to comment on this without using very rude words indeed so I shall shut up.

    *breathes*

    OK – just one point. This is the same Woolas who was complaining that us immigration lawyers drag everything unnecessarily through the legal system at huge cost to the public purse, and he has just effectively given us another reason why a case has to be dragged through the legal system. Awesome.

  5. Tragedy……However i have noticed an alternative…..as i understand it if a child is born in the UK and lives the first 10 years of his life in the UK then he is eligible to apply for British Nationality…..whereas this might be of little comfort, anybody who has kids born in the UK approaching 7 years of age might well be advised to hold on for a few years…..

  6. I find it difficult to see how or why AB Jamaica went too far – it seemed humane and reasonable to me, I have to say. It also doesn’t touch on the 7 year rule for children, as far as I know. I’ll quote from the end of the judgment to make my point about reasonableness:

    “31. The breach of immigration control involved no fraud or concealment, was not protracted and was owned up to. The marriage was genuine, subsists and provides a family not only for Mr and Mrs Brown but for her two adolescent girls now settled here. Mr Brown is here not by leave but by right, was born here, has work and housing here and, so far as the evidence goes, has neither lived nor has accessible roots anywhere else. If, as is accepted, the obligation under art. 8(2) rested on the Home Secretary to show that it was proportionate to expect him to emigrate to Jamaica if he wanted to preserve his marriage, not only was there no evidence about the availability of work or accommodation in Jamaica but, when offered the opportunity, the Home Office presenting officer declined to ask Mr Brown any questions about this or anything else.
    32. On the other side, it can be said that there was an undoubted breach of immigration control which, while not determinative, has to be evaluated by a tribunal of fact; that if it is found to be of significant weight, much may turn on the husband’s situation; and that the husband’s situation is so scantily described in his witness statement (“I have lived all my life in the UK… I have a stable job which I have been doing for over 15 years and the pay is good enough for me”) that it is not a foregone conclusion that removal of the appellant and her children will be held to be disproportionate.
    33. But the easy course of sending the case back gives the Home Office a second chance, which it does not deserve, to get together a case which it signally failed to get together for the hearing. The paucity of evidence from Mr Brown of potential hardship does not matter if the burden was on the Home Office under art. 8(2) to show there was little or none. The significance of Mrs Brown’s breach of immigration control, after a lapse of years owed principally to the Home Office’s still unexplained inertia, could not on any fairminded view make it proportionate either to disrupt the family’s life here by the removal of her and her daughters to Jamaica, or to expect her husband, in order to keep the marriage intact, to go to a country where no evidence showed it to be reasonable to expect him to settle.
    34. In this situation not only ought the AIT, in my respectful view, to have held on its first-stage consideration that the immigration judge had erred in law; it should have gone on, by way of second-stage reconsideration, to allow the appeal. It would not, I think, have been right for it to set the evidence at large again; but whether or not that might have been done by the AIT, it is no longer a fair option. On the evidence as it stood before the immigration judge, the appeal should have succeeded. I would enter judgment accordingly.”

    It’s difficult to dispute that there was an error of law by the tribunal, and disposal (i.e. allowing the appeal himself rather than sending it back to the AIT) was determined by the Home Office’s failure to make its case in the first place and, presumably, the additional considerable delay that remittal would have caused the family.

    Thanks for the comment, LondonHOPO, and also for the tip-off that I failed to pick up on. Not quite sure why the quotation marks are used for we “immigration lawyers”, though…

  7. Harj, you are quite right, but the British Nationality Act 1983 only helps those children actually born in the UK (it’s 5 years for those who would otherwise be stateless, 10 years for everyone else) or children one of whose parents becomes settled, i.e. gets ILR. Both can be registered as British citizens, more or less as of right apart from the silly good character test the Home Office imposed in 2006. I know quite a few kids of whom it would be difficult to say they are ‘of good character’!

    Still, as I say in the post, I think there are some positives to be taken from the wording used by Woolas in withdrawing the concession as it gives immigration judges more discretion. That is sometimes a bad thing, sometimes a good thing.

  8. BeautifulBurnout,

    My post is not necessarily my opinion, but my understanding of how we have reached this point from the HO perspective.

    Personally, and not speaking for all PO’s, using the nuclear option of withdrawing all DP’s (as versus amending them, or accepting and following AB) seems to have been a knee jerk reaction – but those decisions are way above my pay grade.

    FM,

    Use of quotation marks merely reflecting the fact that I was using your vocab, not meant as a slight or to be offensive on my part. My previous post was not a “tip off” at that stage, but what turned out to be accurate speculation – all be it informed by our understanding of the mind of the new minister.

    LondonHopo

  9. hi free movement
    i just want to ask a question about the spouse visa, did won the tribunal court on 26 of november i have been refuse on 320(7b)
    and now the embassy have 28 days,so how long do you think it will take to get a call from the embassy and to give me the visa ?

  10. TiDyMe

    If only Damien Green had leeked this earlier in the year. Its clearly a hot potato, and very unpopular.

    I’m not sure if LondonHOPO took the tongue in cheek mole comment as intended, but his first comment (“had been in the wind for a long time”) is a very very interesting insight. First, it explains why the concession details were removed from the UKBA website quite a while back (perhaps a rule of thumb here). Second, it suggests that the AB Jamaica case had very little, if anything, to do with the withdrawl.

    The AB Jamaica case does highlight the HO’s veiws on immigration and family members: only children should easily obtain status from parents. Parents should not usually obtain status from their children, and spouses should only obtain status with difficulty. (Some of which I personally disagree with.)

    It also highlights the pros & cons of the recent EU regs. All the Browns, except Mrs Brown, were British (presumably). Despite this, the whole family is being asked to return to Jamaica. This family is a good example for advising “exercise of treaty rights” in one of the other EU states due to the Art.2(2) relationships that exist.

    The ten year rule for children mentioned a few times I understand, but I fail to see how that helps the parents, which was a significant part of the concession, particularly for parents with kids that were already British.

  11. TiDyMe

    Correction:
    In AB Jamaica, the children were not British.

  12. awaitin status as well 6 January 2009 at 6:16 pm

    very contradictory because how are parents to survive or i should say – be surviving if they are illegal for 7 years or more .. its obvious that they are working illegally which is assisting in the economic down turn of the country – - if they were to just run an amnesty all these people that are here workin an waiting for their kids to reach 7 years old could be contributing to the economy by paying taxes and all..

  13. TiDyMe

    awaitin status as well

    The economy is in downturn due to unaffordable levels of tax, burdensome beaurocracy, too big a Government employing too many non-value added employees, debt bubble based on over-inflated house values, the US prime market collapse, oil price volativity etc. Once manufacturing goes, and liquidations occur, a domino effect starts and the efficiency slack can’t now take it, and the investors emmigrate to tax havens taking the money with them weakening the currency further. When the data for liquidations came out for Qtr#2 2008 the B.ofE. could not drop interest rates fast enough.

    In other words, its practically nothing to do with illegal working!

    Most people who would have used DP5/96 are in relationship with British nationals or NonEU migrants on visas that allow work.
    These people will now have to apply for FLR for 3 years, plus a further 3 years, before applying for ILR, at an extra cost of £790 than previously.

    Your last sentence, an amnesty is one way, but just not cancelling DP5/96 is a better way. The courts will probably say that the Govt can’t deport children and their parents after seven years in UK anyway, but no doubt FM will keep the case law coming on this. The other possibility is that EU law will change, and allow EU Nationals to exercise treaty rights in their own country. There are some pertitions for this request throughout Europe; Italy has already done this in effect.

  14. Can anyone tell me exactly HOW you apply for the concession under the article 8 of ECHR? Ive been surfing the net for AGES (and believe me, it was long) and could not find where it told you specifically how you apply for it.

    Is it just a letter? Is there a form for it?

    Please help! Freemovement, you are my last hope!

    • This is a matter of some debate, I’m afraid. Some lawyers say a formal paid-for immigration application on a SET(O) form is the way forward, as it at least triggers a response. Most lawyers feel that this is inappropriate, particularly given that many of the policies around Article 8 (those that are left) are non-removal policies rather than immigration rules. The appropriate way forward may be simply to write to the Home Office, explain the situation and see what happens. However, one can wait years for a response. I dealt with a case on Friday where there was a four year wait for a decision in such a case.

      I would strongly recommend seeking good professional advice before making any application relating to Article 8 as it is not straightforward and evidence is crucial.

  15. HI,
    JUST WANTED TO KNOW IF THERE HAD BEEN ANY CASE RE ARTICLE 8 AFTER THE REMOVAL OF THE 7 YEARS CONCESSION.
    THANKS

    • Not specifically since the withdrawal of the policy. But there are other policies on long residence for failed asylum seekers and there is also the useful case of Maslov v Austria, in the European Court of Human Rights.

  16. Is there any grounds that can allow the HO to refuse your application on the 7 year child policy if you entered the country legally and applied prior to the policy being discontinued?

    • ‘Yes’ is the short answer. Going any further takes me into the forbidden realms of giving legal advice directly to the public over the internet, I’m afraid.