7 years children concession - need more information

[tasha75]

Tasha what was your poor immigration history?
what if the parents has an asylum case that is still being treated as legacy case?
Can you tell me if they can benefit from the 7 years rule if:
Their kid becomes 7 and no final decision has been reached about their asylum case.

Bahwe, poor immigration history is being illegal, overstayer, absconding, fake marriage etc.
If someone has claimed asylum and it is still under consideration then I doubt that they have poor immigration history as it is not their fault that it takes HO decades to look into one's case (but then it also depends on when they claimed asylum, asap or later when they felt like it). If after all this years they are still waiting for the Ho to reach their decision then I would think they have a very good chance to be granted ILR under legacy. You might want to write to HO (legacy team) about 7-year concession and that that your children are now 7 (to make your case stronger - every little helps).

Their kids has become 7 and they have received a refusal and a deportation order.
If the parents have a poor immigration history but they can rely on art 8 because they have humanitarian reasons that go against their deportation?

If their asylum claim gets refused then they might apply under 7YC, however if this is refused then there is no right of appeal but you could still appeal on human rights. That's what we did, and we won our appeal on human rights. At the hearing my barrister stated straight away that we are not appealing against the 7YC refusal as it is a concession (not an immig. rule) and it is up to the HO whether to exerciser their discretion or not.


All above is just my opinion and my personal experience, as I am not an immigration specialist.

[tasha75]

Bahwe, maybe he is a good lawyer in another area, e.g. work permits or spouse applications, but in this case he is wrong.
Have a read, nowhere it mentions about the youngest child.

'Deportation in cases where there are children with long residence: Policy Modification announced by Under-Secretary of State for the Home Department Mr O'Brien on 24 February 1999

3.1 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence.

[jei2]

bahwe,

I was referring to the 5 minutes conversation you had, not his reputation.

So much can be misunderstood if you don't have time to draw out the issues.

As tasha75 says this may not be his area. I have a fantastic solicitor across the road. But he (as he readily admits) knows sod all about immigration.

There is nothing in the policy that refers to the youngest child being the one to benefit from the 7 year concession.

Imagine the Human Rights uproar if this was indeed the case..

[bahwe]

You know guys,
It is very nice when you ask questions and other people that you don't know reply each time to you in details.
Tasha and Jei2 I really appreciate your replies.

[bahwe]

Tasha
A couple of months ago I was reading the story of Twin, Very sad story, I hope she is ok, tried to look for more recent posts from her but couldn't find any.
I remember you replying to her. I have just checked your replies and you have recommended http://www.iasuk.org/
Did they deal with your case nicely? would appreciate your reply.

[jei2]

bahwe,

Re your earlier concerns about immigration history, this might give you some idea of the current reading of the policy. There might be more recent stuff. Will post if I come across anything.

http://www.bailii.org/ew/cases/EWCA/Civ/2005/1246.html

[Twin]

Tasha
A couple of months ago I was reading the story of Twin, Very sad story, I hope she is ok, tried to look for more recent posts from her but couldn't find any.
I remember you replying to her. I have just checked your replies and you have recommended http://www.iasuk.org/
Did they deal with your case nicely? would appreciate your reply.

Hey Bahwe, i'm here and much better, thank you.

My ordeal with the HO wasn't a pleasant one and even worse with the AIT but the struggle continues.

My daughter wasn't exactly 7 years old at the time the Home Office made a decision on my application. My application was mainly refused because my relationship with my EX had broken down and because my daughter was just under the age of 7, they refused to exercise their discretion under DP069/99(child concession).

My solicitor was terrible to say the least. Personally if what I know now is what I knew then, I would have represented myself and won the case. #

since I now have a removal notice served on me, i've made a formal application under the 7 year concession. I have a shared residence order(children's act order) in place which prohibits my daughter being removed from the country and i've furnished the HO with this. I also intend butresses my claim with the Chikwamba case law.

However, I have in the last few months decided to return home and apply for a visa under paragraph 246 as I now have a residence order in place.

Basically, i'm fed up of the battle and want to take the easier and quicker route of entry clearance. I'm not saying this would be smoth sailing but at least I get to know my fate in a matter of weeks rather than years.

Before I leave though, I am going to initiate a judicial review on the grounds of the House of Lord's ruling on Chikwamba. I think i can run this concurrently with my entry clearance.

All the best Bahwe.

[bahwe]

So nice to hear from you
Your seem now better and sure of what you are doing, I wonder how did you get the courage to decide to go back home for entry clearance after all these years, All the best. I hope we all get to solve our problems, I think I am not the only one who started getting gray hair.
can you clarify me more on the Chikwamba case law.

[bahwe]

Thank you Jei2
Your post was very useful.

[Twin]

So nice to hear from you
Your seem now better and sure of what you are doing, I wonder how did you get the courage to decide to go back home for entry clearance after all these years, All the best. I hope we all get to solve our problems, I think I am not the only one who started getting gray hair.
can you clarify me more on the Chikwamba case law.

It does seem that I know what i'm doing, doesn't it? The truth is that i'm shitting myself. I try to be brave. I have been told by at least two solicitors not to leave that I could get it sorted here but the question is: when? I am fed up of waiting in limbo.

As I was booking my flight, I was saying to myself: Aren't you making a wrong decision? I guess i'll know when I get there.

I just want to be the controller of my own destiny and not the Home Office. i'm fed up of asking them to use their discretionary rather than my demanding my rights by playing by the rules.

What scares me most is being refused and not be able to represent myself at the appeal. I would love to be at the AIT, face the judge and the HO representative and argue my case. Infact, I don't believe any barrister can do a better job than me on my case.

[bahwe]

Oh Twin!
I can see that you are tired and fed up of fighting.
You still remember Jeff Albright?, He was able to defend himself and win the case, wish we had the knowledge and courage not to count on our lawyers.
You have been in this country for years, Isn't it better for you to wait in a place that you know rather than being in a country that you don't belong to anymore? If it is sure that you will get your situation regularized by the entry clearance than do it if not stay here and keep on fighting and never give up, haven't u said that at least two lawyers told you that you can regularize your situation without leaving the country?

[Twin]

Oh Twin!
I can see that you are tired and fed up of fighting.
You still remember Jeff Albright?, He was able to defend himself and win the case, wish we had the knowledge and courage not to count on our lawyers.
You have been in this country for years, Isn't it better for you to wait in a place that you know rather than being in a country that you don't belong to anymore? If it is sure that you will get your situation regularized by the entry clearance than do it if not stay here and keep on fighting and never give up, haven't u said that at least two lawyers told you that you can regularize your situation without leaving the country?

nothing is guaranteed especially when it comes to immigration, my dear.

I am just leaning towards been back with an entry clearance within 4 weeks as opposed to waiting for the HO to decide my fate in years.

I will get a better visa than a 3 year discretionary and all in a matter of weeks. I am sure that they can't forever bar me to be with my child.

[tasha75]

Oh Twin!
I am sure that they can't forever bar me to be with my child.

Not forever, but what if they still refuse and you have to appeal, which may take a whole year.
Twin, did you check whether your case is a legacy case. I would have thought so, as you've been here for donkey years and I think you have a good chance of getting ILR.
I keep everything crossed for you, I so wish that you get sorted very very soon, my dear.

[Twin]

Oh Twin!
I am sure that they can't forever bar me to be with my child.

Not forever, but what if they still refuse and you have to appeal, which may take a whole year.
Twin, did you check whether your case is a legacy case. I would have thought so, as you've been here for donkey years and I think you have a good chance of getting ILR.
I keep everything crossed for you, I so wish that you get sorted very very soon, my dear.

Yeah, i'm aware that they could refuse and that i may have to go the appeal route but one year to me is better than 2, 3 or even 5 years to get the home office to shift their weight.

I can't go the legacy route as I never claimed asylum. The best and quickest way to do it in country is to go for judicial review citing Chikwamba and producing the joint custody order which is now in place but I am also mindful of the 1st of October concession deadline.

If not for that, i'd have tried to at least fight it in country.

Also the home office have recently, the Home office

announced their intention for the UK Border Agency to have a legal duty to safeguard and promote the welfare of children as part of the forthcoming Immigration Bill, which will be introduced in the next session

I intend injecting this into my entry clearance application also.

We'll see but i'm just fed up of all this. If they refuse me, i'd have to stay put in my home country and continue life there. There's more to one's life than fighting the home office. I have other aspects of my life that needs to be fulfilled.

[tasha75]

I can't go the legacy route as I never claimed asylum.
Apparently legacy route is not just for asylum cases but for human rights as well. And to think that have you applied for asylum you'd have most likely qualified under 2003 family amnesty. I never claimed asylum either so missed on that as well.

We'll see but i'm just fed up of all this. I have other aspects of my life that needs to be fulfilled.

I totally understand you. I won my appeal last May (14 months ago) , yet I am still waiting for HO to stamp my passport. I am so fed up. I have 10 years work experience, 2 degrees yet you are made to feel like sh1t. I am now seriously thinking about other opportunities, maybe Canada or Australia. Sod them.

[Twin]

I can't go the legacy route as I never claimed asylum.
Apparently legacy route is not just for asylum cases but for human rights as well. And to think that have you applied for asylum you'd have most likely qualified under 2003 family amnesty. I never claimed asylum either so missed on that as well.

We'll see but i'm just fed up of all this. I have other aspects of my life that needs to be fulfilled.

I totally understand you. I won my appeal last May (14 months ago) , yet I am still waiting for HO to stamp my passport. I am so fed up. I have 10 years work experience, 2 degrees yet you are made to feel like sh1t. I am now seriously thinking about other opportunities, maybe Canada or Australia. Sod them.

You have got to be kidding me! Didn't you win your appeal last may? That is disgusting!! You should start a judicial review! It will only set you back £50 to apply to the administrative court. Usually if you send the home office the court notice, it makes them move and you won't have to go through the case.

I wasn't aware that article 8 non asylum seekers can benefit from legacy too, you know..? Thanks for the heads up. I'll look more into it but it's the time, the time.......oh the time! October is looming too.

I don't know why my heart is adamant on out of country application. I guess i'm just fed up of waiting...

[tasha75]

You have got to be kidding me! Didn't you win your appeal last may? That is disgusting!! You should start a judicial review!

Thanks for that, I'll have a look into this, I thought judicial review is the net step after you lost your appeal. Yes, I won appeal last May, got my passport stamped 1 year later, but they didn't give any visas to my kids. Said another department will deal with it and they will request my passport again. Now its been 10 weeks since then, 11 complaints sent and no response whatsoever. And when I called them, they are like you got your visa, what else do you want, there is nothing on our system that the case hasn't been closed. And every time I call them it's like talking to deaf, they either pass the buck, or we can't give you that info, you have to speak to your caseworker. What bloody caseworker, I wasn't given contacts of the new department.

I wasn't aware that article 8 non asylum seekers can benefit from legacy too, you know..?

You can call CR team directly (who are actually very nice people) and ask if your case is legacy. If they can't find you on the system, they will take your details and someone will look into your case and supposedly call you back with info. There are so many people on the other side, who had outstanding HR applications, or got refused asylum hundreds years ago, absconded, and then wow, out of the blue a letter with ILR.
All the best.

[Twin]

You have got to be kidding me! Didn't you win your appeal last may? That is disgusting!! You should start a judicial review!

Thanks for that, I'll have a look into this, I thought judicial review is the net step after you lost your appeal. Yes, I won appeal last May, got my passport stamped 1 year later, but they didn't give any visas to my kids. Said another department will deal with it and they will request my passport again. Now its been 10 weeks since then, 11 complaints sent and no response whatsoever. And when I called them, they are like you got your visa, what else do you want, there is nothing on our system that the case hasn't been closed. And every time I call them it's like talking to deaf, they either pass the buck, or we can't give you that info, you have to speak to your caseworker. What bloody caseworker, I wasn't given contacts of the new department.

I wasn't aware that article 8 non asylum seekers can benefit from legacy too, you know..?

You can call CR team directly (who are actually very nice people) and ask if your case is legacy. If they can't find you on the system, they will take your details and someone will look into your case and supposedly call you back with info. There are so many people on the other side, who had outstanding HR applications, or got refused asylum hundreds years ago, absconded, and then wow, out of the blue a letter with ILR.
All the best.

Judicial review is for much more than that, darling. A lot of time, this is the only avenue that gets the home office to make a move. They are easily threatened with the high court so rather than having to go before a superior judge, they do the right thing because they now that they will never win.

I'm not conversant with legacy cases at all. So what is CR and do you have their contact details, please?

[Twin]

oh yes. CR = case resolution, right? thanks, hun.

[bahwe]

Hi Twin
Legacy cases can also be for cases based on art8, they would look at the time spent, your character your history your link( family member), u can ring 02086041742 and ask them if your case is legacy, it takes time foe them to reply, if they say no you can ask the immigration to consider your case as such.
Here is a good link about legacy cases www.ilpa.org.uk

[tasha75]

I'm not conversant with legacy cases at all. So what is CR and do you have their contact details, please?

bahwe has given their phone number, don't bother calling the general HO number 0870...7766, they are morons.
As for the CR and Human rights applications, I think user called iraqimmigrant on the other site is one of this cases and he is a legacy case.

[bahwe]

Hi Tasha
Just wanted to know your opinion in http://www.iasuk.org/
Are they the lawyers you delt with when you won your case on human rights bases?

[tasha75]

Hi Tasha
Just wanted to know your opinion in http://www.iasuk.org/
Are they the lawyers you delt with when you won your case on human rights bases?

Hi, sorry for a delay.
yes, I dealt with them. I was first seen by one caseworker, who assessed my case and referred it to another, more experienced or senior caseworker who then deals with it till the end (I think it might be the standard process). Both my caseworkers were brilliant, very proactive, they kept pushing me (in a nice way) for additional documents, proofs etc. even at the times when I felt like giving up.
My first caseworker had actually consulted her supervisor at first, and he didn't want her to take my case on, but she insisted as she likes a challenge (in her words). She told me on the spot that I will not be successful in my application under the 7 years concession, but I insisted (I thought I knew better LOL) and of course, I got refused. Then we appealed on Human rights and European law and we won. The Home Office didn't appeal. My hearing was on Thursday and I got determination a week later, which was dated Saturday. So it took the judge only 2 days to make his mind.
I was also lucky to have a brilliant barrister. My original appeal was adjourned and the barrister that was allocated to my case was not available on that day, so I was transferred to another one - who happened to be the co-author of the Immigration Law book. a very big and thick book of immigration rules. The funny thing at my appeal was when the judge had to consult the book written by my barrister. The barrister just had to point him to specific pages, or chapters as he knew it inside out.

My hearing was adjourned twice, first time I was informed the night before, and the second time when we were already in court, just about to begin the hearing. I think those 2 months have cost me a few years of my life. The experience I wouldn't wish to my worst enemy.
All the best with your case.

[jes2jes]

Hi All!

Can any of you post a link to the 7 year concession IDI?
I want to know the impact of a removal notice on this concession.
I need to know this to inform someone in a similar situation.

Thanks.

[tasha75]

Hi, I have some extracts regarding this policy from when I was researching it for myself. but I didn't keep any links as often they expire after a while, so I copy-pasted the necessary info into a Word file.

Written Answers to Questions [24 Feb 1999]
TREASURY [24 Feb 1999]
Office for National Statistics [24 Feb 1999]
24 Feb 1999 : Column: 310

Deportation

Ms Perham: To ask the Secretary of State for the Home Department if he will make a statement on his policy regarding the deportation of families where there are children who have spent a long time in the United Kingdom. [73568]

Mr. Mike O'Brien: For a number of years, it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under 18 living with them who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However, each case will continue to be considered on its individual merits.

###########################################

# Since the appellant's appeal turns largely therefore on whether in fact he met the requirements of the Seven Years Child Concession it is appropriate to set out the text of this policy. A footnote to its text explains that it came into being on 24 February 1999 and that it implemented the incorporation of old DP 5/96 into published caseworking instructions of the new Integrated Caseworking Directorate with the modification that references to ten years in DP 5/96 had now to be read as references to seven years: hence the square brackets. So far as we understand this footnote, it means that the extext of the SYCC is identical as that of DP 5/96 save for the (square-bracketed) alteration of the qualifying period from 10 to 7 years. It reads:

'Deportation in cases where there are children with long residence: Policy Modification announced by Under-Secretary of State for the Home Department Mr O'Brien on 24 February 1999

3.1 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [seven] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all the cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:

* the length of the parents' residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;

* the age of the children;

* whether the children were conceived at a time when either of the parents had leave to remain;

* -whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;

* -whether either of the parents has a history of criminal behaviour or deception.

3.2 It is important that full reasons are given making clear that each case is considered on its individual merits.'

#############################################

# There was also a Home Office press release issued on 1 March 1999 concerning this statement: headed 'Immigrant Families Who Have Lived in the UK for 7 Years will be allowed to stay', it reads:

'A child who has spent a substantial, formative part of life in the UK should not be uprooted without strong reason and that is why we are changing the time-limit from ten to seven years for families with young children who have been unable to establish a claim to remain.

We are committed to delivering a system of immigration control which is firm but also fair. Those who are not entitled to be here should be removed.

However for those who have been in this country for a long time we need to recognise that they will have become established in their community.'

##################################################


The claimant relied on an extra-regulatory policy developed by the Home Office known as DP5/96. Extraordinarily, given its importance to this case, neither party has produced a copy of this policy document. It was before the Adjudicator, and we have seen, a Home Office news release, dated 1 March 1999. This entitled "Immigrant families who have lived in the UK for seven years will be allowed to stay". It continues "The Home Office changed the time limit under which immigrant families with young children can be forcibly removed from the country." The news release then set out in a quotation from the Home Office Immigration Minister, Mr M O'Brien, in which he acknowledged the problems facing a child who had spent his formative years in the United Kingdom being uprooted to a different part of the world. It explained that the government was "changing the time limit from ten to seven years for families with young children who have been unable to establish a claim to remain". It is plain from correspondence that this affected the Home Office policy document DP5/96, although that had itself been incorporated into a Policy Modification and announced by Mr O'Brien on 24 February 1999. According to a footnote in Butterworth's Immigration Law Service at page D188 a letter dated 19 April 1999 from Immigration Service Headquarters explained that the concession applies to all enforcement cases including cases where only one parent is subject to removal either by deportation or as an illegal entrant. However the full text of the policy modification made it plain that each date must be decided on its own merits. It says: "For the purposes of proceeding with enforcement action in the case involving a child, the general presumption is that we would not usually proceed it with enforcement action in cases where a child was born here… however, there may be circumstances in which it is considered that enforcement action is still appropriate, despite the lengthy residence of the child, …" It then lists examples of such circumstances and lists factors that are generally relevant. It is quite clearly not the case that there is an unequivocal policy of allowing families to remain when children have been in the United Kingdom for seven years or more.

However Mr Schwenk submitted that the policy was still relevant for the purposes of a consideration of Article 8. The Secretary of State could not argue that removal was necessary in a democratic society when the Secretary of State decided that removal of children who had been in the United Kingdom for more than seven years was wrong. As far as it goes we see a great deal of merit in that submission but we find does not go far enough.

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