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The Return of the 7 year Immigration Benchmark for Children

Prior to its withdrawal in December 2008, the Home Office had a seven-year policy concerning the settlement of children in the UK. The presumption was that if a child had spent seven years in this country, they should not be removed in the absence of any other countervailing factors, such as criminal conduct on the child’s parent’s part.

However, changes to the Immigration Rules on 9 July 2012 brought that benchmark back with regard to family cases where children were involved. This takes the form of a seven-year provision – called an ‘exception’ – that applies in a series of circumstances. These include the parent having a “genuine and subsisting parental relationship” with the child, the child being under 18, the child being in the UK, and the child being a British citizen or having resided in the UK for at least seven years immediately prior to the application. The seven-year ‘exception’ also applies if it would not be reasonable to expect the child to leave the UK.

If a parent makes a claim on this basis, the new rules also contain certain other ‘suitability criteria’ that they must meet – otherwise, there will be grounds for refusal. The parent must not be subject to a deportation order, for instance, in the event of them having committed a criminal offence. Nor must the claimant be considered as someone whose presence is “not conducive to the public good”, and they also must not have made false representations.

Provided that these requirements are fulfilled, leave to remain for 30 months without recourse to public funds will be granted to the applying parent. After subsequent applications are made for further leave to remain, potentially leading to further grants of leave for 30 months without recourse to public funds, once 10 years have passed, the parent will be able to apply for settlement – otherwise known as indefinite leave to remain.

The relevance of the seven-year benchmark also extends to circumstances where a parent is using their right to family life with a child in the UK as the basis for an appeal against a deportation order. The UK Border Agency may make such a direction to enforce the departure of a person from the UK in the event of their conviction of a criminal offence.

If the person has been convicted of an offence for which they have been sentenced for less than four years, there are certain conditions that may render deportation disproportionate. One of these conditions is if the child is a British citizen or has lived in the UK for a minimum of seven years immediately prior to the immigration decision.

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