Children pay the price of tough immigration policies
The rights of UK-based children from a migrant background are being steadily eroded. Solange Valdez and Declan O’Callaghan chart the main changes and explain the impact they have had
Children born in the UK to migrant parents or those who have lived in this country nearly all their lives have been hit by a barrage of legislative and policy changes over recent years, leaving many without the rights and protections they previously enjoyed.
Indefinite leave to remain
In 1996, the DP5/96 concession was first introduced permitting the grant of indefinite leave to remain (ILR) to families with children who have completed 10 years residence, rather than being removed from the UK. In 1999, this policy was amended by DP6/99, where the 10-year residence requirement was reduced to seven years.
The explanation given for this policy change was that a ‘child who has spent a substantial, formative part of life in the UK should not be uprooted without strong reason’.
The concession set out the criteria to be applied when considering whether enforcement action should be initiated or proceed against parents of a child who was born in the UK, and had lived here continuously to the age of seven or over; or where, having come to this country at an early age, subsequently accumulated seven or more years continuous residence. Families with children falling under this concession would be considered for ILR.
On 9 December 2008, this policy concession was withdrawn, with the then minister of state observing that the original purpose and need for the concession had been overtaken by the Human Rights Act and changes to Immigration Rules, and ‘the fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate.’
An unfortunate impact of the policy withdrawal was that the formerly enhanced position of children and families became less certain.
Discretionary leave to remain
On 1 April 2003, the discretionary leave to remain (DLR) policy was introduced, enabling a person normally to qualify for ILR after completing six years of DLR.
Between December 2008 and July 2012, the DLR policy in respect of children with seven years or more residence, was normally applied as well in matters where human rights or exceptional circumstances were established.
On 9 July 2012, the Secretary of State withdrew the DLR policy for those applying for leave to remain on article 8 ECHR grounds.
Leave to remain outside the rules
In April 2006, an exception to the six-year DLR policy requirement was identified by the introduction of the leave to remain outside the rules (LOTR) policy, by which it was acknowledged that there may be a ‘very small’ number of instances where it would be considered appropriate to grant ILR rather than a period of discretionary leave ‘because the particular compelling circumstances of the individual case are such that it is almost certain that there will be no change to circumstances within five years (Immigration Directorate
Instructions (April/06) chap 1, s14, para 3.2).’
Best interests of a child
On 2 November 2009, the Borders, Citizenship and Immigration Act 2009 s55 came into force, establishing that the Secretary of State possessed an identifiable duty to act in the best interests of a child. That month, the Secretary of State issued statutory guidance with regard to this duty (Every Child Matters – Change for Children). He confirmed that he had to act according to identified principles, including:
•every child matters even if they are subject to immigration control;
•in accordance with the UN Convention on the Rights of the Child, the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children;
•children should have their applications dealt with in a timely way and that minimises uncertainty.
In 2011, the Supreme Court confirmed the scope and nature of the s55 duties in ZH (Tanzania) [2011] UKSC 4. The ‘best interests of the child’ were identified as broadly meaning the ‘wellbeing’ of the child. Such an assessment involves asking whether it was reasonable to expect the child to live in another country.
In 2013, the Supreme Court revisited s55 in Zoumbas [2013] UKSC 74) and held that, though the best interests of a child could be outweighed by the cumulative effect of other considerations, no other consideration could be treated as inherently more significant. It was important for a decision-maker to have a clear idea as to a child’s circumstances and to carefully consider all facts before asking whether such interests were outweighed.
Leave to remain under the Immigration Rules for children who have lived in the UK for seven years
On 9 July 2012, the Immigration Rules were amended so as to permit a child who has lived in the UK for seven years, to apply for leave to remain (LTR) on private life grounds (para 276ADE(1)(iv)). The rules were further amended to include ‘where it would not be reasonable to expect him/her to leave the UK’.
Upon completing 120 months of leave to remain, the child can apply for ILR.
Indefinite leave to remain outside the Immigration Rules
In June 2013, the High Court was required to consider whether the Secretary of State’s discretionary leave policy could be read and applied in a manner compliant with her duty under s55. The claimants in the consolidated proceedings of SM (SM v Secretary of State for the Home Department [2013] EWHC 1144 (Admin); [2013] Imm AR 1051) were children. They were all born in the UK to mothers who were overstayers. They were successful in their article 8 human rights appeals but were only granted DLR for three years.
The Secretary of State’s DLR policy was found to be unlawful as it precluded case-specific consideration of the welfare of a child under s55 from the discretionary decision whether to grant immediate ILR or DLR. The language of the policy document as a whole precluded the decision-maker from even considering a child as being eligible for ILR until they had completed at least six years of DLR. Such an approach resulted in there being no recognition that the children in SM would, realistically, continue to remain in the UK and ultimately be granted ILR. The effect of only granting DLR was to prolong uncertainty for no welfare-related benefit or purpose and with little regard to the statutory guidance of Every Child Matters.
The relevant DLR policy concerning children was amended consequent to SM. The ‘expectation’ is that in most cases a standard period of 30 months’ DLR would be appropriate. The present DLR policy identifies the following to be considered: length of residence and whether the child was born in the UK; strong evidence suggesting that the child’s life would be adversely affected by a grant of LTR rather than ILR is to be weighed against immigration history, parental conduct and the wider requirements to ensure a fair, consistent and coherent immigration policy (Discretionary Leave, version 6 (24 June 2013, para 4.4).
Qualifying for home student fees and loans
On 1 September 2007, The Education (Fees and Awards) (England) Regulations 2007 SI No 779 identified that to qualify for home student fees, an applicant has to be ‘ordinarily resident’ throughout the three-year period preceding the first day of the first academic year and possess ILR on the first day of the first academic year.
On 1 September 2011, The Education (Student Support) Regulations 2011 SI No 1986 introduced a requirement that for the purposes of access to student support, a person had to be settled and ordinarily resident for at least three years before the course begins in order to be eligible to apply for a student loan.
In July 2014, the High Court held in Tigere (R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWHC 2452 (Admin) that the 2011 regulations would adversely interrupt a student’s education, which so far had been afforded to her by the state.
On appeal, the Court of Appeal (Tigere v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216) held that legislation limiting eligibility for student loans to those who were ‘settled’, and who had been ordinarily resident for three years was not in breach of the human rights of individuals like the appellant who, although resident in this country for a long period and with DLR, did not enjoy ILR. Laws LJ observed that it was common ground that the objective of husbanding limited funds to afford priority to persons who were likely to remain in the UK to complete their education and benefit the economy was a legitimate aim.
Vos LJ held that the Secretary of State had to ensure that the applicable regulations operated properly in the context of immigration policy. Therefore, she had to review the situation periodically to ensure that, for example, the requirement of ‘settlement’ remained appropriate in the light of the way the immigration processes operated. What saved the eligibility requirements in the 2011 regulations was that there had, at all relevant times, been discretion to grant ILR. However, while being in agreement that the Secretary of State’s appeal be allowed, Vos LJ expressed concern:
The Secretary of State’s evidence dealt with the unworkability of any solution that required a discretion to be exercised in individual cases and the scarcity of public funds, but did not indicate that any step had been taken to evaluate the impact of the SSHD’s recent changes to immigration policy in relation to the grant of indefinite leave to remain (ILR) as opposed to discretionary leave to remain (DLR) apart from the equality impact assessments of June 2012 and 3 July 2013 (para 73).
Application fee for leave to remain and indefinite leave to remain
An increase in fees for applications for LTR and ILR is usually introduced every April. The current fee is £601 for LTR and £1,093 for ILR applications.
There is a fee waiver for LTR applications only, and this is subject to the Secretary of State determining that the applicant is destitute. There is also a fee waiver for children applying for LTR or ILR if they are in receipt of specific type of assistance from the local authority under the Children Act 1989.
Current position on indefinite leave to remain
It may often be in the best interests of children with a significant period of residence to be applying for ILR outside the rules. In s55 cases, the Secretary of State must carry out a careful examination of all relevant information and factors given to her. As recently mentioned by the President of the Immigration and Asylum Chamber (JO and Others (s55 duty) Nigeria [2014] UKUT 00517 (IAC) the tools available to the court and tribunal will frequently be confined to the application or submission made to the Secretary of State and the ultimate letter of decision.
The current practice must, therefore, be that where ILR is being applied for outside the rules, the request for such leave should be clearly identified and the application be accompanied by strong evidence establishing aspects of the child’s welfare that would be better safeguarded or promoted if ILR rather than LTR for 30 month periods for the next 10 years were granted.