12.05.09
UK immigration clarifies 7 year child concession
The fact that a child has spent a significant period of their life in the UK will continue to be an important relevant factor to be taken into account by caseworkers when evaluating whether removal of their parents is appropriate.
On behalf of everyone who has written in with concerns of the withdrawal of the 7 year child concession I wrote to Lin Homer, Chief Executive of the UK Border Agency, for clarification on where families stand in accordance with Article 8 of the European Court on Human Rights (ECHR).
She was kind enough to pass my questions on to Richard Honeyman, Assistant Director at the UKBA, and I am grateful for his response.
I provided a link to your comments on the Global Visas blog which the Assistant Director has read over.
Whilst the UKBA can’t respond to individual cases or examples he has tried to simplify what the withdrawal of DP5/96 means in line with Article 8 of the ECHR:
“There has been some confusion and misunderstanding by many outside organisations, legal representatives and individuals as to how DP5/96 operated prior to its withdrawal, as well as how cases concerning children will be dealt with now that the child policy is no longer in place,” wrote Mr. Honeyman.
“As you are aware, on the 9th December 2008 when the Immigration Minister Phil Woolas formally withdrew the policy he made the following statement:
‘The fact that a child has spent a significant period of their life in the UK will continue to be an important relevant factor to be taken into account by caseworkers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligation under the European Convention on Human Rights (ECHR) and the Immigration Rules.’
‘The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and Article 8 of the ECHR will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully.’
Mr. Honeyman draws particular attention to the fact the UK Immigration Minister states all circumstances of a case will be taken into account, including the length of a child’s continuous residence in the UK, which remains an important and relevant factor.
“I note contributors to your website are disappointed by the withdrawal of DP5/96. However, it has been apparent for some time that DP5/96 had become an outdated policy which treated families unlawfully in the UK more favourably than families who remained here lawfully and abided by the Immigration Rules,” said the Assistant Director.
“As you know, DP5/96 did not apply to cases where individuals had remained lawfully in the UK. In this regard, it had the adverse effect of encouraging individuals to overstay their leave so that they could have the policy applied to their case.”
“As a matter of procedural fairness, transitional arrangements have been put in place for the cases that may still qualify for consideration under DP5/96,” he added.
There are likely to be existing cases where DP5/96 will continue to apply despite its withdrawal. These types of cases are:
- Current appeal cases where the policy has already been applied (before its withdrawal) and rejected by the UKBA and the appeal is either still pending with the Asylum and Immigration Tribunal (AIT) or has been allowed;
- Appeal cases where the policy was not applied by the UKBA (before its withdrawal) and where the AIT directs UKBA to consider DP5/96 in the context of an allowed appeal;
- Cases where the UKBA are challenging an allowed appeal by either the AIT or an Upper Court;
- Where the UKBA have acknowledged in writing that they have received an application which relies on DP5/96;
- Enforcement cases where the UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 9 December 2008, for example, where a caseworker has already considered DP5/96 prior to its withdrawal and has written to the individual and the representative and the representative requesting further information/ evidence in relation to the child’s length of residence.
I think a lot of you will still have many questions regarding UK immigration but I’m grateful for Assistant Director Richard Honeyman’s time.
I will contact an expert in Article 8 of the ECHR for further clarification and get back to everyone with my findings.
Published by Gareth McConnell Global Visas in Global Visas, UK immigration, UK immigration: 7 year child concession
May 14th, 2009 at 9:50 am
hi Gareth , first thank you for your efort thanks for all the team. for me i don’t know what i have to do exactly ? did i go to humain right court or i do an application …?? i’m confused
May 14th, 2009 at 6:27 pm
i have been refused…but nw im applying under the length of yrs ive bn in the u.k for i hope this brings good news this time.
May 15th, 2009 at 2:20 pm
thanks gareth but i have not send in any application yet pls tell me what you think i can do to upgrade my status with my children .thank very much for your concern.
May 30th, 2009 at 8:15 pm
Thanks for all the enquiries made on our behalf, much appreciated. I applied under the EEA rules based on my child who was 5+ then but was refused because they said the child was a minor and as such we the parents could’nt exercise such rights except if we had £66,000 in our account, appealed the decision but the judge held. However the child is now is 6 years 4 months. Will this rule apply to our situation?
June 18th, 2009 at 2:15 pm
Thank you Gareth, My son was over seven years before the concession was withdrawn, I applied and by 5 months i had a refusal, later UKBA wrote to me that it was an error, they then demanded other documents which I supplied all, after 6 months I had a refusal letter with no right of appeal, I dont know if this seven year concession really works all the my lawyer says she can force an appeal which I have to pay more money, she has made the representations, please advice do you think I will be successfull?? Thank you. if you need more info I will give it to you. I applied before it was withdrawn.
September 18th, 2009 at 1:29 am
As an eea citizen living in the u k is it possible for me to apply for eea dependant for my sister inlaw in the u k.
October 4th, 2009 at 3:03 pm
Hi Gareth,
Refer to 4 above what does it mean £66,000 in account.
Thanks
Nash
November 26th, 2009 at 9:58 am
Hi John Acquah,
Who is your Solicitor please let me know the address details.
Thanks.
Nash.
December 28th, 2009 at 6:25 pm
Hi gareth, I applied for asylum and I am expecting my answer any time, my solliciter is saying it will be an automatic refusal and after we will appeal but based on my asylum case, but my concern is my oldest is 6+ and my smallest 4+ both born in the uk, and the new process of the cases is short, i am afraid to lose my chance, do I need to do a diferent appeal based on Family ART 8
January 6th, 2010 at 5:32 pm
Your Solicitor is the best person to assist you. I could give an oppinion but based on the tiny amount you have told me. Avoid asking random questions on the internet and work with your Solicitor. If you no longer trust them sack them and secure the services of a law firm you trust. You can also check out the OISC website.
January 6th, 2010 at 11:41 pm
Hi Gareth,
Happy New year.
Lived here for ten years on Student Visa. Renewed it twice, first and second year. Have 5 children age 6 5, 3 and 5 months old. Any change of advising me how to apply and on what grounds? Also own a home and do not claim benefits
January 13th, 2010 at 9:48 pm
hi im illegally staying here for 8 yrs and have a son who is 6..do we have a chance to process our paper under child huma nright? his father is legal here but we r separated,,i have a bf now who is british citizen and plans to gt married..wot shall i do??
January 16th, 2010 at 4:06 pm
What can you do? Very little – Have you thought about going home?
January 22nd, 2010 at 10:17 am
my solicitor said if we plan to get married i can process something here..is that true
January 25th, 2010 at 5:42 pm
congratulations for john acquah you deserve you LR. My advice for the familys to do their first steps even if it’s 50/50, it’s a huge difference. God Bless everyone
Special thanks for Gareth your Website is unique.
February 16th, 2010 at 3:50 pm
hi gareth…..i wrote to you some time ago….regarding my 7 yrs conssesion application and was refused.then i applied again under human right(sadly refused again)..i dont know what else to do and i cannot go back home..because i have no one to go back to..and i have been away from my country of origin since 2000.when i was 9 yrs old…i am now 18 turning 19 in few weeks…the where about of both my parents are unknown to me
i have been adviced to go with judicial review…but i cannot afford it….ive also been adviced to see my local mp…!
soo lost and confused what should i dooooo please help.:(
May 7th, 2010 at 8:26 pm
Hi Gareth,
Is it possible to get in touch with John Acquah through his email. Thanks!
July 24th, 2010 at 12:54 am
Hi
I came to the UK when I was 8years old on a visit visa with my mother but have overstayed my visa and would like a permament residence to remain in the UK as both my parents have been granted with their stay and no longer have any family in my home country but now that I’m 18, would this effect it? If apply for Artical 8 ECHR whould this help me to get my stay? Please reply