Can children and parents apply to stay beyond seven years?

 From the perspective of a child, seven years in the UK can feel like an eternity. It may be the totality of the child's experiences, and the UK could be the only home they've ever known in any meaningful way. Furthermore, children are not allowed to make their own decisions regarding shifting homes or nations. To put it another way, while adults make educated decisions about where to live, children must deal with the consequences of others' decisions.

The Immigration Rules provide that a kid may be granted permission to stay based on their Article 8 right to a private life if the following conditions are met:

They are under the age of 18.

They have been in the UK for at least seven years (discounting any periods of imprisonment)

It would be unreasonable to expect them to leave the UK.

Where the parents have no separate right to remain in the UK under the Immigration Rules — which is practically all of these seven-year cases — the Home Office almost invariably concludes that it would be acceptable for the kid to accompany his or her parents back to the country of nationality.

Legal history

An applicant for leave to remain in the UK on the grounds of private life must meet the following requirements at the time of application: (iv) be under the age of 18 years and have lived continuously in the UK for at least 7 years (excluding any period of imprisonment), and it would be unreasonable to expect the applicant to leave the UK.

There is also section 117B(6) of the Nationality, Immigration, and Asylum Act of 2002, which states: "In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—(a) the person has a genuine and continuing parental relationship with a qualifying child, 

Section 117D(1) defines a "qualifying child" as a person under the age of 18 who is either a British citizen or has "lived in the United Kingdom for a continuous period of seven years."

In an immigration appeal, if someone fits the threshold laid out in section 117B(6), their appeal should always be successful because removing them would be disproportionate under Article 8. Proportionality is traditionally defined as a balancing act, and if section 117B(6) applies, one side of the scales is empty, implying that such a person should always succeed.

When is it "appropriate" to force a child to leave?

According to Home Office policy, the "beginning point is that we would not typically anticipate a qualifying kid to leave the UK," and if the eligible child is not expected to depart, neither are the parents.

However, this is quickly qualified: "if both of a child's parents are expected to leave the UK, the kid is typically expected to depart with them, unless there is evidence that it would not be acceptable."

The guidance then provides a number of scenarios of when it may be appropriate for a qualified child to leave the UK with a parent or carer:

the parent or parents, or child, are citizens of the country and thus have full citizenship rights in that country there is nothing in any country specific information, including that contained in relevant country information, that suggests relocation would be unreasonable the parent or parents, or child, have existing family, social, or cultural ties with the country...

Removal would not pose a major risk to the kid's health, and no other specific factors have been raised by or on behalf of the child.

Clearly, establishing that it is unfair to expect a kid to leave, especially when neither parent has a right to be in the UK, necessitates a fairly high standard.

Reasonableness case law

Because so much depends on the meaning of "reasonable," attempts to define term have resulted in a substantial corpus of case law.

Even if the child does not intend to leave the UK, the test is still applicable.

It is possible that removing a qualified kid, putting the parents inside section 117B(6), would be unreasonable, even if the child would not leave the UK anyhow. That was established in the instance of AB (Jamaica) & Anor [2019] EWCA Civ 661, which supported the decision in SR (Subsisting Parental Relationship – s117B(6)) Pakistan [2018] UKUT 334. (IAC).

This could be the situation if just one parent is appealing for permission to stay, but the other parent is British or has other right to stay, and the child would remain in the UK with that parent even if their other parent was removed.

The parents' situation is (indirectly) relevant.

The primary question in this case is whether the courts should take a "narrower" approach (focusing primarily on issues relevant to the child) or a "wider" approach in determining whether it is fair to expect a child to leave the UK (looking at other matters such as the conduct and immigration history of the parents).

It is fair to state that there has been a great deal of uncertainty on this issue as a result of rather inconsistent judgements, as pointed to by the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018]. UKSC 53 ("there have been considerable disparities in approach and contradictory decisions").

In that case, the court ruled that it is:

... it is invariably necessary in both cases to evaluate where the parents are expected to be, apart from the relevant provision, because it is typically acceptable for the child to be with them. To that point, the parents' record may become indirectly significant if it leads to their losing the right to remain here and being forced to leave. The clause may grant the parents the right to remain only if, even under that assumption, it would be unreasonable for the child to leave.

This finding has sparked great dispute among lawyers, as it is unclear what it means for the parents' immigration status to be "indirectly material" to the reasonableness test. It may be instructive to consider how the Supreme Court resolved one of the joint cases before it in KO (Nigeria), in which the parents were allegedly involved in a scheme involving the use of false degrees.

There is no presumption in favour of the family.

In an earlier case, MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, the Court of Appeal concluded that a child's seven years of residence "establishes as a starting point that leave should be granted unless there are compelling reasons to the contrary." This became known as the "strong reasons doctrine" later on.

For a time, it was unclear if this concept would survive the Supreme Court's ruling in KO (Nigeria) and other following cases. NA (Bangladesh) v Secretary of State for the Home Department [2021] finally resolved the issue.