BEST INTERESTS OF A CHILD
1. As well as setting out how the balance should be struck when considering proportionality under Article 8, the new Immigration Rules also reflect the duty on the Secretary of State to ensure that immigration decisions are made having regard to the need to safeguard and promote the welfare of children who are in the UK.11 The assessment of the best interests of the child is intrinsic to the proportionality assessment under Article 8, and has therefore also been incorporated into the Immigration Rules.
2. In assessing the best interests of the child, the question in immigration cases where a child would have to leave the UK as a consequence of the decision to remove their parent, is whether it is reasonable to expect the child to live in another country. The new Immigration Rules set out a clear framework for weighing the best interests of the child against the wider public interest in removal cases. The best interests of the child will normally be met by remaining with their parents and returning with them to the country of origin, subject to considerations such as long residence in the UK and any exceptional factors.
1. The Immigration Rules will deal clearly with how to treat a British citizen child or a foreign national child in cases where we would otherwise intend to remove their parent(s) and how countervailing factors should weigh in the decision. There are some circumstances where a child may be allowed to stay on a temporary basis on best interests grounds, e.g. for health or education reasons. The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child which the Immigration Rules will set at at least the last seven years, subject to countervailing factors. The changes are designed to bring consistency and transparency to decision-making.
1. While the best interests of the child are a primary consideration, under some circumstances criminality will be a countervailing factor which outweighs the childs best interests: the criminality thresholds set out in the section below on criminality will apply.
58. The Immigration Rules will provide a basis on which a person without family life can remain in the UK through long residence and social integration in the UK, consistent with the approach of Strasbourg and UK case law in this area. Those here lawfully for 10 years will continue to be able to qualify for settlement if they meet the requirements (under paragraph 276B(i)(a) of the Immigration Rules). The current 14 years long residence route to settlement for those in the UK lawfully or unlawfully will be abolished (paragraph 276B(i)(b)).
59. Under the new rules, at least 20 years continuous residence in the UK, lawfully or unlawfully, will generally be required before a person can apply to start a 10 year route to settlement in the UK on the basis of the Article 8 right to respect for private life. Anything less than 20 years continuous residence will generally be insufficient to establish private life to the extent that it would be unlawful to remove the person from the UK. The criminality thresholds set out in the section below on criminality will apply.
60. The Immigration Rules will provide that, for leave to remain on the basis of private life in the UK, the applicant must:
have resided continuously in the UK for at least 20 years (discounting any period of imprisonment, in this and other cases); or
be under the age of 18 years and have resided continuously in the UK for at least seven years; or
. be aged 18 years or above but under 25 years and have spent at least half their life residing continuously in the UK; or
. be aged 18 years or above, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin.
1. An applicant for leave to remain in the UK on the basis of private life must apply on the correct form and pay the relevant application fee. If they qualify, they will enter a 10 year route to settlement, consisting of four periods of 30 months leave to remain, plus a fifth application for indefinite leave to remain, if they qualify for it. Once on the route, applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain.