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Court of Appeal clarifies 7-year concession
By Taffy
Nyawanza
Posted to
the web: 13/11/2008 09:54:21
THE seven-year concessionary policy, otherwise
known as DP5/96 (the DP standing for “Deportation Procedure”)
is an extremely useful policy, but its use has historically been somewhat
limited because of the lack of clarity about its ambit.
The British Court of Appeal has now clarified the true content and meaning of the policy in a recent decision given by Lord Justice Rix. The decision is called NF (Ghana) [2008] EWCA Civ 906.
Simply put, the 7-year concessionary policy states that parents who are illegally in the UK but whose children have resided here for more than 7 years might for the sake of their children be allowed to remain here, rather than be removed.
The Court of Appeal pointed out that that confusion arose mainly because over the years, the policy has been amended and re-titled. To add to the confusion, there have been conflicting parliamentary statements and press releases by the Secretary of State over what the policy is really about.
The background facts in the NF case are not only interesting, they are possibly the worst possible scenario that a lawyer could have taken before the Court. NF was born in Ghana. She arrived on a visitor’s visa and varied this to a student visa which expired in 1988. She applied for an extension of this visa, but was refused. She appealed, but withdrew the appeal and went underground.
In the meantime, she had given birth to 3 children who returned to Ghana with their father. In 1997 NF was arrested while attempting to go to France with a forged British passport. She was deported to Ghana. A few months later, she returned to the UK illegally and met a Nigerian man with whom she had a daughter called Obi, who was the focus of the 7-year policy. But NF proceeded to marry a different man, a Mr da Costa Moniz, but divorced him in 2002 when she found out that his Portuguese documents were fake.
In 2003, she went back to the Nigerian man, Obi’s father, and married him. She applied to stay in the UK on the basis of that marriage. The Home Office refused the application because of NF’s atrocious immigration history, among other reasons. She appealed the refusal, and while her appeal was pending, her daughter Obi turned 7.
She requested the Home Office to consider the 7 year concession. The Home Office refused to do this. NF subsequently lost her appeal at the Tribunal, and also on reconsideration. In the meantime, her 3 children had arrived from Ghana, a fact which she initially sought to hide, but subsequently tried to argue in aid of her case. She took her claim to the Court of Appeal.
The Court pointed that the 3 children were irrelevant to the matter at hand which related to Obi. The Court proceeded to consider the appeal on the basis of the 7 year policy. It outlined the history of the policy, pointing out that the original policy document DP5/96 was written in terms of children aged 10 or over. In 1999, that period was reduced to 7 years.
The
original policy set out a number of key factors which had to be considered
before enforcement proceedings could be carried out against the parents
of children who were either born here and are aged 7 or over or where,
having come to the United Kingdom at an early age, they have accumulated
7 years or more continuous residence. It said that while each individual
case is considered on its merits, the following are factors which may
be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive)
representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the
parents had a leave to remain;
(e) whether return to the parents' country of origin would cause extreme
hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behavior
or deception.
The court noted that that formulation was neutral, and did not clarify
how each of these factors should be weighted. It also noted that the
original policy emphasized that each case must be considered on its
own merits, and that full reasons should be given for a decision.
The court noted that in 1999, the then Home Office minister gave an answer in parliament and confirmed that it was not the policy of the Home Office to purse enforcement action against people with children under the age of 18 living with them who have spent 10 (now 7) years or more in this country, ‘save in exceptional circumstances’.
Thereafter, the Home Office made a press release, and stated that there would have to be a strong reason to displace the policy. A ‘policy modification document’ was also issued at about the same time which stated that there was ‘a general presumption’ that the Home Office would not normally proceed with enforcement in cases where a child had 7 years or more accumulated residence’.
At a 2005 Court of Appeal hearing, the Home Office accepted this modification to be their position. The Court of Appeal in NF also accepted this to be the applicable policy formulation.
It concluded that in light of this, the previous Tribunals had made material errors of law in key aspects of its decision and sent the matter back to them for a re-hearing.
The key points as clarified by the Court of Appeal are therefore that;
1. In future, tribunals should start from the presumption that it is only in exceptional cases that indefinite leave to remain will not be given in 7 year cases, but that the tribunals should go on to consider the extent to which any of or a balancing of all the 6 listed factors makes the case an exceptional one.
2. The appellant NF had a particularly bad immigration history, but it still allowed her appeal to the extent that the Tribunal should re-consider the facts. In other words, the Court of Appeal refused to accept that it was inevitable that a different Tribunal would come to the same conclusion as the previous one. This case demonstrates that, in the words of John McCain, nothing is inevitable in Article 8 cases.
3. Obi, NF’s daughter, turned 7 while the matter was still ongoing
in the courts. The fact that she turned 7 during the court processes
was something which the immigration judge ought to have considered,
even though the policy was not applicable at the date of the decision.
This is in fact in line with the trite position that in in-country appeals,
an appellant is entitled to produce new evidence as to the present position,
even where the evidence itself has arisen after the date of the decision,
and in fact, even where the requirements of the law were not met at
the time of the decision. .
The NF decision is, therefore, a welcome clarification of the law surrounding the 7 year concession by the Court of Appeal.
I conclude by a news alert from impeccable sources that this policy may, however, soon be withdrawn, as were other kindred policies such as the 10 year long residence policy (although this was re-formulated in the Immigration Rules), and DP3/96 which related to married couples (although this continues to apply in historical cases).
As usual, if any of this is unclear, it is best to seek legal counsel.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk
Disclaimer:
This article only provides general information and guidance on immigration
law. It is not intended to replace the advice or services of a solicitor.
The specific facts that apply to your matter may make the outcome different
than would be anticipated by you. The writer will not accept any liability
for any claims or inconvenience as a result of the use of this information.
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