The fact that a child has spent a significant period of their life in the UK will continue to be an important relevant factor to be taken into account by caseworkers when evaluating whether removal of their parents is appropriate.

On behalf of everyone who has written in with concerns of the withdrawal of the 7 year child concession I wrote to Lin Homer, Chief Executive of the UK Border Agency, for clarification on where families stand in accordance with Article 8 of the European Court on Human Rights (ECHR).

She was kind enough to pass my questions on to Richard Honeyman, Assistant Director at the UKBA, and I am grateful for his response.

I provided a link to your comments on the Global Visas blog which the Assistant Director has read over.

Whilst the UKBA can’t respond to individual cases or examples he has tried to simplify what the withdrawal of DP5/96 means in line with Article 8 of the ECHR:

“There has been some confusion and misunderstanding by many outside organisations, legal representatives and individuals as to how DP5/96 operated prior to its withdrawal, as well as how cases concerning children will be dealt with now that the child policy is no longer in place,” wrote Mr. Honeyman.

“As you are aware, on the 9th December 2008 when the Immigration Minister Phil Woolas formally withdrew the policy he made the following statement:

‘The fact that a child has spent a significant period of their life in the UK will continue to be an important relevant factor to be taken into account by caseworkers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligation under the European Convention on Human Rights (ECHR) and the Immigration Rules.’

‘The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and Article 8 of the ECHR will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully.’

Mr. Honeyman draws particular attention to the fact the UK Immigration Minister states all circumstances of a case will be taken into account, including the length of a child’s continuous residence in the UK, which remains an important and relevant factor.

“I note contributors to your website are disappointed by the withdrawal of DP5/96. However, it has been apparent for some time that DP5/96 had become an outdated policy which treated families unlawfully in the UK more favourably than families who remained here lawfully and abided by the Immigration Rules,” said the Assistant Director.

“As you know, DP5/96 did not apply to cases where individuals had remained lawfully in the UK. In this regard, it had the adverse effect of encouraging individuals to overstay their leave so that they could have the policy applied to their case.”

“As a matter of procedural fairness, transitional arrangements have been put in place for the cases that may still qualify for consideration under DP5/96,” he added.

There are likely to be existing cases where DP5/96 will continue to apply despite its withdrawal. These types of cases are:

• Current appeal cases where the policy has already been applied (before its withdrawal) and rejected by the UKBA and the appeal is either still pending with the Asylum and Immigration Tribunal (AIT) or has been allowed;
• Appeal cases where the policy was not applied by the UKBA (before its withdrawal) and where the AIT directs UKBA to consider DP5/96 in the context of an allowed appeal;
• Cases where the UKBA are challenging an allowed appeal by either the AIT or an Upper Court;
• Where the UKBA have acknowledged in writing that they have received an application which relies on DP5/96;
• Enforcement cases where the UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 9 December 2008, for example, where a caseworker has already considered DP5/96 prior to its withdrawal and has written to the individual and the representative and the representative requesting further information/ evidence in relation to the child’s length of residence.

I think a lot of you will still have many questions regarding UK immigration but I’m grateful for Assistant Director Richard Honeyman’s time.

I will contact an expert in Article 8 of the ECHR for further clarification and get back to everyone with my findings.

]]> http://blog.globalvisas.com/uk-immigration-clarifies-7-year-child-concession.html/feed 7 http://blog.globalvisas.com/advice-on-7-year-child-concession-dp596.html http://blog.globalvisas.com/advice-on-7-year-child-concession-dp596.html#comments Mon, 12 Jan 2009 16:25:46 +0000 Gareth McConnell Global Visas http://blog.globalvisas.com/?p=148

UKBA withdraws DP5/96 replaced by Article 8 of the Human Rights Ac

‘The United Kingdom Border Agency is withdrawing DP5/96, a concession which has also been referred to as the seven year child concession, as of 9 December 2008.’ – Phil Woolas, Minister for Borders and Immigration

Based on the number of enquiries we’ve had from concerned parents affected by the withdrawal of DP5/96  I’ve put together some information I found on how the UK Border Agency approach individual cases relating to UK visa applications concerning children.

I’m hoping this advice will reassure parents they’re not about to be deported, you all seem very worried.

In all cases involving children the following must be established and reported to the relevant casework section:

• The child’s age,

• Ties with the natural parent, how often children see their natural parent, whether any maintenance is paid towards the children’s upkeep,

• Whether the children could easily adopt 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.

For visa applications involving people and children who do not meet long residence requirements the longer a person has lived in the UK, the stronger their ties with the UK will be. This will help your UK visa application.

However, more weight is attached to the length of time a child has spent in the UK compared to an adult.

Time spent whilst waiting for an in-time application to be resolved or where residence has built because of delay or administration error by the Home Office, should be regarded more favourably than time spent in the UK illegally. Delay alone will not justify granting leave to remain, but it is a factor caseworkers should take into account.

When considering delays in visa applications caseworkers willtake into account if the claimant:

• has a UK visa application outstanding for over 2 years, and

• has not received a decision from the UK Border Agency during the time, and

• has been making progress enquiries during that time, and

• in the meantime, the delay has meant that they have built up significant private or family life or if the delay has resulted in considerable hardship, for example children who have been established in school over a period of years because of UK Border Agency delay in dealing with families’ applications.

UK immigration will take into account the visa applicants personal history, including character, conduct and employment record.

Regard will also be given to any criminal activity the person, or any dependents, liable to removal action have been involved in.

It will be relevant to consider whether a person has maintained contact with the UK Border Agency, as required, and has been actively pressing for resolution of his/ her immigration status.

Similarly, a person’s lawful employment history and how they have supported themselves and/or their family during their stay in the UK will form part of the consideration.

UK visa applications will be considered on strength of connections to the UK, including family ties, marriage and civil partnerships and other connections such as business or lawful employment.

In cases where a person has spent their formative years in the UK, consideration must be given to whether they have adapted to life in the UK and/or whether they can adapt to life outside the UK.

In addition, the Home Office must take into account the impact of deportation of a person on their spouses and children.

When a person is married, in a civil partnership or a relationship akin to marriage with a person lawfully resident in the UK, a genuine and subsisting relationship will create further ties with the UK. In this regard, reference should be made to Proportionality in the Asylum Policy Instruction (API).

Domestic circumstances including housing, tenancy and ownership, whether they or their children are in education, whether anyone in the UK relies on physical, financial or emotional support all increase strength of ties between a person and the UK and are weighed against any adverse effects.

Additional factors including whether the UK visa applicant can maintain himself/herself and any children without the need for public funds for the foreseeable future shoudl be taken into account.

In the case of a child of school age, the effect of removal on a child’s education must also be considered, the practicality of plans for the child’s care and maintenance in the UK if one or both parents are removed, and any representations made on behalf of the spouse and child.

Compassionate circumstances such as ill-health, medical treatment, the inability of a person to look after himself/herself, and reliance upon persons resident in the UK must also be taken into account.

What should you do now?

My advice is to go through the points and start writing down your strengths, listing everything you can think of that will help your visa application.

Start with your child’s age, how long your child has been here, your ties to the UK – list you or your child’s schools, list the lawful jobs, including voluntary work, you have had and the family members you have living in the UK.

Write down how you are involved in the community and how you have supported yourself, your spouse and children. You might be surprised at how extensive your list will be and in the end it will help your visa application.

I hope this helps.

Children younger than seven might now have a stronger case to argue

‘The United Kingdom Border Agency is withdrawing DP5/96, a concession which has also been referred to as the seven year child concession, as of 9 December 2008.’ – Phil Woolas, Minister for Borders and Immigration

As many people already know DP5/96 protected the rights of children born and/ or living in the UK continuously for at least 7 years.

It meant the child and parents could not be deported to the parents original country, as in most cases, it would be a traumatic and unfamiliar experience.

Effective immediately is the decision not to support visa applications relying on a DP5/96.

Is this a good or bad decision?

Removals will still be able to be challenged under Article 8 of the Human Rights Act which takes into consideration the decisions in the cases of Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department.

The withdrawal of 5/96 is due to changes in UK immigration rules and the Human Rights Act 1998, which appear to have superceded the rules of 5/96.

Children who have spent less than seven years in the UK might now have a case to argue as long as strong, documented evidence is produced to support an application.

Are you affected by the seven year child concession?

Were you relying on 5/96 for your indefinite leave to remain? Do you have children born in the UK younger than 7?

Leave your comments below.