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Do you have to be under 18 to rely on the seven year long residence rule?
Credit: Kim Traynor on Wikimedia Commons

Do you have to be under 18 to rely on the seven year long residence rule?

Fair play to the litigants and their lay representative for their perseverance in the Scottish appeal case of Saleemi [2020] CSIH 32. Their tenacity is remarkable: the Home Office refused their applications for leave to remain, the First-tier Tribunal refused their appeals, the Upper Tribunal refused to grant permission to appeal, and a judge of the Outer House refused permission for a judicial review. Despite all of those adverse decisions, they managed to persuade the highest court in Scotland that the First-tier Tribunal arguably got it wrong — and that there is an important point of legal principle at stake.

The first of the three litigants was a 17-year-old child on the date of his application under the seven year rule in paragraph 276ADE(1)(iv), which requires the application to be “under the age of 18 years”. By the time his appeal came around, he was 19. The First-tier Tribunal judge did not give him the benefit of the more favourable Article 8 assessment that a minor would receive.

As Lord Brodie summarises the issue:

… should then the FTT have treated the first petitioner as the adult he was at the date of the hearing, or as the child that he had been at the date of his application?

The court accepted this is an important point of principle, although this particular judgment does not actually resolve it. That will be for another judge to determine, if the judicial review proceeds to a substantive hearing.  So good news for the family — but they still have a long way to go.

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John Vassiliou is a partner at McGill & Co, a Scottish law firm specialising in immigration and nationality.

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