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 Phil Woolas has withdrawn DP5/96 as of 9 December 2008.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.
However, 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 The Home Office view as stated by Woolas is that the specific concession and 7 year guidance is being withdrawn and cases will now simply be assessed under Article 8 of the ECHR.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.