Post
by Shondra Sharma » Fri Dec 13, 2013 1:22 pm
Hello everyone in the forum!!!! Good afternoon. Here is something regarding 7 years child application:
From 9 July 2012, the Home Office UKBA introduced this new category to apply for stay on the grounds of family life as a parent of child who lived in the UK continuously for seven years. By introducing the new provisions within the Immigration Rules, the UKBA has actually re-instated the old seven years child concession policy. The only difference is that previously it was a concessionary policy and not it is part of the Immigration Rules. Also, under the seven years child concession policy, the UKBA used to grant indefinite leave to remain (ILR), whereas according to the Immigration Rules, the UKBA will now grant initial leave to remain for a period of 30 months and upon completion of ten years residence in the UK under this category a person can apply for indefinite leave to remain (ILR) unless he is eligible to apply for indefinite leave to remain (ILR) earlier on the basis of ten years long continuous and lawful residence.
You can qualify for initial leave to remain for 30 months as a parent of a child who has lived in the UK continuously for seven years if you do not have any unspent criminal convictions and you have not caused deception in any applications submitted to the UKBA.
The Immigration Rules require seven years continuous residence of the child and not that of the parent. At the time of the application, the parent must have been enjoying family life, as envisaged under Article 8 of the European Convention on Human Rights (ECHR), with the child who has lived in the UK continuously for seven years.
It is pertinent to note that for the application to succeed as a parent of child who has lived in the UK for 7 years continuously, the Immigration Rules require that:
E-LTRPT.2.3. Either-
(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK); or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.
E-LTRPT.2.4. (a) The applicant must provide evidence that they have either-
(i) sole parental responsibility for the child; or
(ii) access rights to the child"
From the above provisions, it is clear that those who are single parents with sole responsibility for the child can succeed in such applications. Alternatively, an applicant who is not a partner of the other parent of the child and where the other parent of the child is a settled person with Indefinite leave to Remain (ILR) or is a British Citizen can succeed in such applications.
If both parents are living with the child and they are partners to each other, the UKBA is more likely to refuse the application under Appnedix FM if neither parent is settled in the UK.
The UKBA do not consider Article 8 of the ECHR in the same manner as the courts and therefore in such cases even if the UKBA have refsued an application, there may be relatively better chances of success at appeal stage. in case of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC), the Upper Tribunal found that:
"(1) The case law of the Upper Tribunal has identified the following principles to assist in the determination of appeals where children are affected by the appealed decisions:
i) As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
ii) It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.
iii) Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.
v) Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic well-being of society amply justifies removal in such cases."
An application is made to the Home Office, UKBA using an application form FLR (O). The parent as well as the child who has lived in the UK continuously for seven years will be granted leave to remain (permission to stay) for 30 months. 28 days before the expiry of 30 months leave, a person can make an application for extension of stay under the same category. Any time spent with leave to remain as a parent of a child with seven years continuous residence will be counted towards ten years lawful continuous residence for the purposes of making an application for indefinite leave to remain (ILR) on the basis of ten years long residence. It will also be possible to switch from this category to certain other categories from inside the UK e.g. Spouse visa, Unmarried Partner Visa, Civil Partner Visa, Same Sex Partner visa, etc.
Guys what you make of it this? please comment
(signed for as well)