PLEASE ASSISTANCE WITH 7 YEAR RULE

[magata]

Hi All,

A very worried/concerned family asked me to post the following history to the forum in the hope that you might provide them with some assistance and advice.


The lady (44 years at that time) came to the UK as a visitor in February 2001, together with her husband (47 years at the time) and his son age 10 years at that time. They obviously have overstayed. Their son has been studying since they arrived here and now is in year 11. They have been to various immigration help centres and have been advised that they would be able to apply in February 2008 when his son would have completed 7 years residing in the UK ‘’under the 7 year rule’’. However, they do not seem to give full information about the requirements to complete this application. Therefore, we would be most grateful if would respond to the following questions:

What kind of supporting evidence do they need to prepare for this application?

Will this application assist/allow their parent to stay in the UK with their son?
How long is likely for them to respond?

What are the chances of this application being successful?

Are they in danger of being removed while the application is processed?

Is it necessary to apply through a solicitor/representative?


Any extra guidance/advice is gratefully appreciated

Many thanks

[Siggi]

Magata,

So you are saying that they(your friends) have been in the UK with no visa's or permit since 2001, so around 6 years?

1)Personally I don't know of any 7 year ruling, 10 years yes, but someone more senior might be able to pass comment .

2)What is your friends Nationality?

[magata]

Siggi,
Yes that is correct

are colombians

[jes2jes]

Hmmn!

According to the IND:

Seven year concession

Where a human rights applicant has dependant children in the United Kingdom, and any of thosechildren were born in the UK and are aged seven or more, or where a child born outside the UK has accumulated seven years or more continuous residence, it may be considered appropriate to grantindefinite leave to enter or remain. The individual circumstances of each case will need to beconsidered, and the decision maker should always seek the advice of a senior caseworker

This is on page two of the policy document found here:

(http://216.239.59.104/search?q=cache:kS ... cd=2&gl=uk)

I think you would need a lawyer in the first place and secondly I think this document is currently missing in the IDI's.

Whether they would be removed when the application fails is another issue. If they are not granted any right of appeal then yes but if granted then they can stay until such time the appeal is over. I think such cases should always use the legal route as there are some very experience Immigration Lawyers who can help. On your own, you must be very well vest in Human Rights law and the IRs.

All the best.

[jes2jes]

Well, found this document too which may be of help to you:

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


24 Feb 1999 : Column: 310

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

http://www.parliament.the-stationery-of ... .htm_sbhd3


Another for your reading pleasure:

The Seven Year Concession

The 'seven year concession' applies to families with a dependant child (under 18) or children living with them who have been living in the UK 'continuously' for 7 or more years. In such cases IND accepts that 'enforced deportation or removal will not normally be appropriate' as 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'. (see House of Commons written answers 24 February 1999, column 310). There is no requirement that the child should have been born in the UK.

It should be noted that contrary to other policies in relation to applications made by children, the policy is applied only where there is a child aged under 18 at the time the case is considered by the Home Office rather than the date the application is made.

As the concession relates to the length of residence of the child, the immigration status of the parent should not matter even, for example, where removal directions have been set or a deportation order signed.

Exceptions to this concession include where there has been a flagrant abuse of the immigration law or where the parent has been convicted of a serious criminal offence which outweighs the compassionate circumstances of the case, including the length of residence of the child.

NB: Emphasis mine.

[sakura]

Generally, I guess this is a long residence category, so you need as much documentary evidence as to his stay in the UK - school letters, for example, date of entry into the UK (?), anything with records (official) of his presence. Of course, there is no point in getting these things now, because it needs to be shown that he was in the UK for 7 years at least, so his parents should wait until 2008 (though it doesn't hurt to start looking for contacts). They might also need to provide documentary evidence for themselves.

From what I know...ILR, if granted, would be granted to the family (whoever is included in the application...but obviously only mother, father and any legal siblings under eighteen). However, this is a very very important note to read:

It should be noted that contrary to other policies in relation to applications made by children, the policy is applied only where there is a child aged under 18 at the time the case is considered by the Home Office rather than the date the application is made.

Remember that this is not part of the immigration rules, and as such is a concession. This means the BIA can really take a much longer time to look through the application. Other applications within the immigration rules (i.e ILR based on WP) will always come first. This is like the 14-year concession (although that is now a rule, but it still can take a long long time!). I don't know much about this 7 year one, but I am quite sure that it will be a tight squeeze for the family. The child will be about 17 when the application is submitted? So you only have 12 months or so for the BIA to make a decision...if he turns eighteen during the time the BIA considers his application...well, I don't know - can anyone inform us of what might happen? Is it while they start looking at it, or at the time they make a decision? But that is my interpretation of this quote.

I don't think the BIA can remove people whilst they have a pending application with them. So no.

The parents can apply with a solicitor (at the time), but under no circumstances must you apply any time before the 7 years. Why? As I mentioned, it takes the HO a while to reply to the application. If they refuse him do to applying prematurely, then he might be too old (i.e. over eighteen) to re-apply. So make sure the parents apply at the right time, and don't be fooled by no dodgy lawyers!

[jes2jes]

Sakura:

Generally, I guess this is a long residence category, so you need as much documentary evidence as to his stay in the UK - school letters, for example, date of entry into the UK (?), anything with records (official) of his presence

This is not LR application but rather a discretional application as you pointed out later in your post. The OP should not confuse the two. One is enshrined now in the IR (LR) and the other (7 year Rule) is under the discretion of the Sec of State.

I don't think the BIA can remove people whilst they have a pending application with them. So no.

I do not think so too.

Whether they would be removed when the application fails is another issue. If they are not granted any right of appeal then yes but if granted then they can stay until such time the appeal is over

if he turns eighteen during the time the BIA considers his application...well, I don't know - can anyone inform us of what might happen?

IMHO, I think it would be treated as continues and whether the applicant has pass the age limit would be irrelevant since the HO tends to apply the rules to situations at the time the application was filed (posted or received). More like applying a day before your leave to remain expires - Section 3C but someone more knowledgeable would confirm this for both of us.

[sakura]

jes2jes,

This is not LR application but rather a discretional application as you pointed out later in your post. The OP should not confuse the two. One is enshrined now in the IR (LR) and the other (7 year Rule) is under the discretion of the Sec of State.

Sometimes my posts aren't very clear! I meant, like LR categories, you need to provide a whole lot of evidence based on the years required. I didn't mean the application was on the LR forms?? I obviously don't know the application form, but I'm sure that if it is a concession, one needs as much documentary evidence (like with 14-year category) to ensure the BIA doesn't call you and ask for more.

IMHO, I think it would be treated as continues and whether the applicant has pass the age limit would be irrelevant since the HO tends to apply the rules to situations at the time the application was filed (posted or received). More like applying a day before your leave to remain expires - Section 3C but someone more knowledgeable would confirm this for both of us.

Well, the quote I had...said it is not based on the actual immigration rules and is as such outside the rules, and that in this particular concession it is based on age rather than date of application. I am hoping, though, that if he does hit 18 then they would not rule out his application, but some other member can clarify what might happen.

Here it is again:

the policy is applied only where there is a child aged under 18 at the time the case is considered by the Home Office rather than the date the application is made.

So if he applies aged seventeen years and 364 days, and he then turns eighteen when the BIA have his file, then they won't consider it - that is what I read from this. But if they have another child under 18, then it's ok?

[douces]

my aunt and her kids was successful thru the seven years concession
you have to proved that the child live in the uk for seven years and is attending school and any other factors you like the home office to take in to account

[jes2jes]

the policy is applied only where there is a child aged under 18 at the time the case is considered by the Home Office rather than the date the application is made.

The above is very tricky considering the age of the OP's friend child. The HO can delay the application till the child is 18 and refuse it on the above premise. That is the more reason why it would make sense to use the help of an IL who can argue it out in the event this occurs. Catch 22 I must say.

Sakura, I am not disputing any of your post just trying to bring out some points

[avjones]

The lady (44 years at that time) came to the UK as a visitor in February 2001, together with her husband (47 years at the time) and his son age 10 years at that time. They obviously have overstayed.

Why did they overstay?

When it the son's 18th birthday?

February 2008 when his son would have completed 7 years residing in the UK ‘’under the 7 year rule’’.

It's not a 7 year rule, it's a 7 year concession, a policy outside the immigration rules. It's at the Home Secretary's discretion.

Will this application assist/allow their parent to stay in the UK with their son?

If successful, it is likely.

How long is likely for them to respond?

It can be a long time - 6-9 months is usual in my experience.

What are the chances of this application being successful?

It depends. If the son turns 18 shortly after the 7 year period, it may well not be. The reason they overstayed etc is important too. Are the parents working?

Are they in danger of being removed while the application is processed?

No, they shouldn't be.

Is it necessary to apply through a solicitor/representative?

No, but it might be a good idea on a discretionary application.

[Jeff Albright]

I would say that most of the above advice is correct.

There should be a Human Rights Application based on the relationship with the child (BIA policy DP5/96). If unsuccessful, this will attract the right of appeal under Section 82(1) of the NIAA 2002.

The following information might help:

The presence here of children of either the offender or his partner must be taken into account when deciding whether removal is appropriate. Removal will not normally be carried out where there are minor dependent children in the family who have been living in the UK continuously for seven or more years. (DP5/96 refers). Establish the following and report to the relevant casework section:
♦ the children's age;
♦ ties with the natural parent; how often the children see their natural parent; whether any maintenance is paid towards the children's upkeep;
♦ whether the children could easily adapt to a life abroad; whether such a move would cause hardship or put their health at risk;
♦ whether the children have the right of abode; the nationality of the children.
The above factors are balanced against the parents' immigration history and any criminal record.
Cases involving children who are British or have the right of abode here require the authority of a senior caseworker in the relevant casework sectionfor removal.

The HR application should be made in reference to the Article 8 of ECHR and address each of the bullet points above in detail + set out immigration history of applicants.

The application will be dealt with by the UKIS Enforcement and Removals
and might take anything between a few months and a few years to be decided.

Good luck!

[magata]

Guys, I am speechless, I am very grateful for your prompt comments which are not only hugely informative but also very concise.

The main reasons for overstaying were: Economic/financial, educational opportunities for their son, relative living here, work etc. His mother works cleaning houses and his father works from time to time in cleaning jobs. They have been paying rent, council tax, Bt bills, GP letters. etc. The boy has been studying and will be able to get educational certificates.


Once again, thanks a lot for everything