Family with 7-Year Old Child Born in the UK Granted Leave to Remain

The Appellants are parents of a child born and raised in the UK. The parents entered the UK in 2007 and 2008 as either students or dependent spouses throughout their leave to remain in the UK with short periods of overstaying. They subsequently applied for leave to remain on the basis of their private life in the UK.

Following a decision by the Home Office to refuse the appellants’ applications for further leave to remain in the United Kingdom (UK), a successful appeal was heard at the Immigration and Asylum First-Tier Tribunal that granted leave to remain to the parents of a child born and residing in the UK for seven or more years.

Their application was initially refused because the Home Office stated that they did not meet the requirements set out in the Immigration Rules for the private life route, namely because the Home Office asserted that there would not be significant obstacles to their reintegration in Uzbekistan.

Having said that, the case concentrated on the child born in the UK where the decision must be made in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009 that the best interests of the child is the primary consideration. For this reason, a compelling argument was made for the appellants with regards to their child, namely that the child born in the UK would face severe discrimination in Uzbekistan or Russia due to language and cultural barriers, as well as having developed strong ties in the UK due to the child’s educational and cultural upbringing in the UK.

Additionally, Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 states that the public interest does not require a person’s removal where that person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK.

The appeal emphasised on the case of MA (Pakistan) [2016] EWCA Civ 705, which states that the fact that the child has been in the UK for seven years is given significant weight in the proportionality exercise and that this establishes a “starting point that leave should be granted unless there are powerful reasons to the contrary”. In summary, it was decided that the child’s best interest is to remain in the UK and that the parent’s poor immigration history of short periods of overstaying was not a powerful reason to the contrary.

Child born in the UK

Moreover, the case shed a light on what it means to be a ‘qualifying child’ who ‘has lived in the UK for a continuous period of seven years or more’. The Immigration Judge held that ‘continuous period’ is not interpreted so absolutely in the Immigration Rules whereby applicants can make visits outside the UK, not more than six months at any one time, and it would not count as a break in the continuous period of at least seven years required.

This case is a significant decision as it further reinforces the idea that it is unreasonable to remove a child that was born and residing in the UK for seven years or more from what they consider to be their country of origin. As such, both parents were successfully granted leave to remain on the basis of their child.

The appeal was allowed on human rights grounds, and the determination of the First-tier Tribunal was promulgated on 21 March 2018. As a result of this successful appeal, the parents can continue residing and enjoying their family life in the UK with their child.

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