Many clients with children in the UK will have heard of the seven year rule. They will have been told that they need to wait until their child has been in the UK for seven years. What they often don’t know is why this is and what happens once the child reaches seven years residence.
“…that over time children start to put down roots and to integrate into life in the UK, to the extent that it may be unreasonable to require the child to leave the UK. Significant weight must be given to such a period of continuous residence.” (Home Office Guidance entitled, Family Migration: Appendix FM Section 1.0b, dated 22 February 2018, page 75)
UK immigration law therefore allows for a child and their parents to remain in the UK after a period of 7 years’ residence. However, importantly, this is not automatic. There is a further requirement: it must be unreasonable to expect the child to leave the UK. This is an open ended assessment and can be difficult to evidence.
For many parents it will be self evident that it would not be reasonable to expect their child to leave the UK, to live in a country they have not visited since they were very young or, when the child was born in the UK, which they have never been to. However the Home Office (and the Tribunal) will not simply assume this is the case. Applicants need to provide evidence of their child’s life in the UK - their education, their social life, their integration – and demonstrated their lack of connection to the country they would be returned to if required to leave the UK and the difficulties they would face if returned – language barriers, cultural differences, safety concerns etc.
“The longer the child has resided in the UK, and the older the age at which they have done so, the more the balance will begin to shift towards it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case where the outcome will be removal of a child with continuous UK residence of seven years or more.” (Home Office Guidance entitled, Family Migration: Appendix FM Section 1.0b, dated 22 February 2018, page 75)
“A much younger child, who has not started school or who has only recently done so will have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be. This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child's position in the wider world, of which school will usually be an important part.” (MT and ET (child’s best interests; ex tempore pilot)  UKUT 88, at paragraph 31)
For a more detailed analysis of the law in this area, head over to the free movement blog to read Colin Yeo’s post entitled “Can children and parents apply to remain after seven years residence?”, recently updated with my assistance following the decision of the Supreme Court in KO (Nigeria).
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