Have a question?
033 3772 0409

Immigration Solicitors

Private Life applications for children following the withdrawal of DP5/96 (11 October 2010)

Date: 11/10/2010
Duncan Lewis, Immigration Solicitors, Private Life applications for children following the withdrawal of DP5/96

By Alex Cooray

The ‘seven year policy’ (DP5/96) previously provided that a minor child who had spent seven years in the United Kingdom should not normally be subject to removal (and that the child’s parents should then also be granted leave to remain).

DP5/96 was withdrawn on 9 December 2008 following a Ministerial statement by Phil Woolas MP, now best remembered for being told off on national television by Joanna Lumley, but then Immigration Minister (Hansard, Columns 49/50WS):

‘The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important factor to be taken into account by case workers…’

Prima facie, then, it appears to have been intended that Article 8 ECHR would serve to protect children’s private life rights in the same way as the policy did.

Nearly ten years earlier, on 24 February 1999, a written Parliamentary answer by the then Immigration Minister Mike O’Brien MP on introduction of DP5/96 (Hansard, columns 309/310) included the following:

‘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…’

Mr O’Brien’s statement makes clear that the policy was not merely an arbitrary act of largesse, but a considered attempt to formulate a just approach to private life rights accrued by children during time spent in the United Kingdom.

The fact that DP5/96 was subsequently withdrawn means that applicants cannot now benefit from the policy per se (save in rare cases covered by transitional provisions); but it cannot mean that it is now ‘right and fair’ for a child’s ties to the United Kingdom to be severed. Indeed Mr Woolas’s statement did not depart from the previous Minister’s statement that in most cases, the ties established by children over a significant period will outweigh other considerations.

Translating the policy into terms familiar in the context of Article 8 ECHR, therefore, it may be said that in most cases, the private life rights established by children who have spent a significant period in the United Kingdom will render their removal disproportionate.

This interpretation appears consistent with European jurisprudence. In Sezen v. The Netherlands 1 , the European Court relied on Recommendation 1504 (2001) of the Parliamentary Assembly of the Council of Europe on the non-expulsion of long-term immigrants. That document states, inter alia (emphasis added):

• ‘These legal immigrants who have been living for many years in their host country, some of whom were born or brought up there, have integrated into their host society and are no longer humanly or sociologically foreigners.’

• ‘The application of expulsion measures against them seems both disproportionate and discriminatory: disproportionate because it has lifelong consequences for the person concerned, often entailing separation from his/her family and enforced uprooting from his/her environment, and discriminatory because the state cannot use this procedure against its own nationals who have committed the same breach of the law.’

‘Under no circumstances should expulsion be applied to people born or brought up in the host country or to under-age children.’

• ‘The Assembly considers that expulsion may be applied only in highly exceptional cases, and when it has been proven, with due regard to the presumption of innocence, that the person concerned represents a real danger to the state.’

Of course, none of the foregoing creates an inalienable right of residence for a child no matter how long they have lived in the country. However, ‘…the fact that the person has been there since childhood is still a weighty consideration in the article 8 balancing exercise’ (per the judgment of Sedley LJ in JO (Uganda) v Secretary of State for the Home Department 2 , paragraph 31).

Nor should there be any need to demonstrate any exceptional impact upon the child.
In Sezen an important factor which rendered removal disproportionate was that the applicant’s children, aged 16 and 9 and born in the Netherlands, had known no other cultural environment and had only minimal ties to their parents’ country of origin, and removal would be a ‘radical upheaval’ for them; the Court found that they could not realistically be expected to relocate.

This issue was also considered by the Tribunal in the recent determination in of LD* 3 (Article 8 – best interests of child) Zimbabwe , Blake J stating:

26. Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life . Both principles are engaged in this case.

27. The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives. Previously Home Office policy tended to identify seven years of residence of a child as one that would presumptively require regularisation of immigration status of child and parents in the absence of compelling countervailing factors. That was really an administrative way of giving effect to the principle of the welfare of the child as a primary consideration in such cases and when it was considered that those interests normally required regularisation of the immigration position of the family as a whole. The policy may have been withdrawn but substantial residence as a child is a strong indication the judicial assessment of what the best interests of the child requires . The UN Convention on the Rights of the Child 1989 Art 3 makes such interests a primary consideration.

28. Although questions exist about the status of the UN Convention on the Rights of the Child in domestic law, we take the view that there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases . A failure to treat them as such will violate Article 8(2) as incorporated directly into domestic law.

In reality, therefore, the withdrawal of DP5/96 should mean nothing more than that the same consideration should be given to the private life rights of children, but now under the aegis of Article 8 ECHR. That is what Mr Woolas said. We may take him at his word.

For all Immigration related matter contact us now.Contact Us

Call us now on 033 3772 0409 or click here to send online enquiry.
Duncan Lewis is the trading name of Duncan Lewis (Solicitors) Limited. Registered Office is 143-149 Fenchurch St, London, EC3M 6BL. Company Reg. No. 3718422. VAT Reg. No. 718729013. A list of the company's Directors is displayed at the registered offices address. Authorised and Regulated by the Solicitors Regulation Authority . Offices all across London and in major cities in the UK. ©Duncan Lewis >>Legal Disclaimer, Copyright & Privacy Policy. Duncan Lewis do not accept service by email.