20 August

There has for some years been a rule or policy in UK immigration law that when a foreign child who has no immigration status has lived in the UK for seven years (either having been born in the UK seven years previously or having come to the UK seven years previously), they may acquire some immigration rights. This is based on the principle that a child is going through a formative process, and that seven years is a period in which a child would be expected to have become psychologically attached to their life in the UK, and that it might in many cases be unfair to the child to remove them from the UK.

The current version of this rule states that such a child should not be removed from the UK unless it is “reasonable” to do so. This of course leaves open a very big question as to what might be “reasonable”, and the question as to what is reasonable in many cases revolves around the situation with the child’s parents.

In some cases the child’s parents may have no immigration status and may therefore be in the UK illegally. This scenario when it arises is a difficult one. Even it is deemed that the child has acquired immigration rights, does this mean that the parents should be given immigration rights as well, on the grounds that it would make no sense to give the child immigration leave but not the parents, because it cannot be right to split up a family? Or should it be that none of the family should be given immigration leave because it would not be right to give immigration leave to the parents simply on the basis that their child is entitled to leave, and would it not be more appropriate to remove the whole family from the UK, thus keeping the family together.

This scenario has recently come up before the Upper Immigration Tribunal (the senior level of the Tribunal) in a case called “PD Sri Lanka”. The Upper Tribunal took – from the point of view of the family – a very favourable view. Their view was strongly informed by the legal principle of “best interests of the child”. The child in this case was 14 years old and had been living in the UK for the last 11 years or so. Clearly, a very large proportion of his life had been spent in the UK, he was strongly psychologically settled in the UK, and there was no doubt that it was in his best interests to be able to remain in the UK. But it could hardly be in his best interests if he was allowed to remain in the UK but his parents were removed from the UK. So in this way the Upper Tribunal held that the whole family should be given immigration status.

But we would like to give a word of warning to those who think that they might want to take advantage of this ruling. This case – like all cases of this kind – depended very much on its precise facts. It could be that other, similar, cases might not be successful because the facts might be sufficiently different. As it has sometimes been expressed in the courts, the rights of a child under the seven-year rule and the best interests principle are not a “trump card” that defeats any other card. So it is very important to take advice from a good lawyer about this kind of issue.

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