Hi again, folks, and welcome to part for the final part off this webinar Siris on the seven year old recent developments hope you've enjoyed it so far. If no, I'm sorry, but there's not much I can do about that now, except just give it my all four part for. So in this part, we're going to be returning, going to the case law, going a bit deeper into the case of principles specifically focusing on the upper tribunal. Most of the cases discussed in this part our upper tribunal cases. The learning objectives are pretty similar to the learning objective in Part three, that is to get our heads around. Some key decisions that the courts or tribunals have made extract the relevant principles from them, relate them back to the statutory and policy framework that we've been discussing this whole time on. Also to see how the whole fits together on what we think of it. Let's go so n a Pakistan en a Pakistan is a court of appeal case in a deportation matter, so relating to a deportation of a foreign criminal. In particular, it relates to the deportation of a foreign criminal who was relying upon the seven year rule exception to deportation within paragraph 399 Little a Andi also reflected in almost identical terms in Part five. A of the nationality immigration assigned back 2002. Or just call it the Immigration Act 2002 for brevity. Onda a Section 117 see Subsection five off that provision. This was a case where the person being deported, um, failed to bring themselves within the accepted the seven year old exception. So they failed to show that it waas on Julie harsh for them to be separated from the child or the child to be required to leave the UK in order to continue a relationship with them. And the question then fell for the Court of Appeal to consider how the fullback present provision in Paragraph 398 ought to apply. Uh, and it's also reflects in Section one more seven c. So when someone fails, under the exceptions in the deportation provision, there is a four back provision which allows for them to demonstrate that there are very compelling circumstances over and above the exception in the seven year rule that would justify grant of leave to remain or would make deportation disproportionate. What did the phrase very compelling circumstances mean? What does it include? What does it exclude? Well, the statutory wording on the wording in the immigration rules is not particularly clear, because at first sight, very compelling circumstances over and above those described in exception, 12 would suggest that counterintuitively, um, that although statute Andi, the Home Office, have written into the rules and statute specific exceptions that somehow you've got to have those exceptions and better. Or we'll have something that is more compelling than those exceptions in order to succeed. And it's a strange way of wording it because we're not dealing with mathematics or engineering here, where something is sort of determined to be higher or at a higher rate than another. We're talking about people's lives. And how do you measure the intensity or the compelling nature off one area of a person's life against the other air of a person's life? Someone's issues with their health? Maybe just a compelling as their issues with ties to local community or difficulties with language or sexuality or other factors. So that approach that the language of the law there lets us down by basically implying kind of force equivalent or a mathematical equation that can be conducted, its not that simple, and the court of appeal basically broke it down in that way. Um, they clarified that for a foreign criminal to rely on features that are included in exceptions one on too. So to rely on the seven year rule as showing very compelling circumstances may be possible. But what they've got to do if they are going to go down that route is to point to some other feature of their case that makes it more stronger, more strong. Andi, especially strong is the phrase used by the Court of Appeal. What does that mean in practice? Well, it's a flexible approach. The Court of Appeal said that the decision maker, whether it's the second state or the tribunal, must look out alone, matters relied upon collectively. So we're sort of back to square one. When it comes to the very compelling circumstances test, You look at a low relevant circumstances, so that would include well relying on the seven year old Um, even if you can't show that deportation would have unduly effect on Julie Harsh effect on the Children, but adding in some other aspect to the equation, like the vulnerability of another family member or the second likely challenges the family might face upon return. So it's it's an elastic concept in practice. So that was any Pakistan on the deportation provision within that camp. In other cases, which I think you need to know about when running seven year rule cases, the case of Azimi, Moya, Dodd and others that's an upper tribunal case from 2013 so off little vintage now. But it's important because of paragraph 13 and also at the head notes off the decision. The upper tribunal sets out five principles that govern this area. Then there really useful. I mean, not all of them will be totally agreeable to two people representing a talents, but that provides a general framework, which isn't particularly to controversial. Note that the upper tribunal observed that seven years from 0 to 7 is unlikely to be given as much weight as seven years from age four onwards. So we've got this high tear that the 1st 4 years of life is sort of dispensable and don't really count for much, which you know is a bit harsh, if you for anyone who's ever interacted with a four year old, which which I certainly have cause I got got two kids Now, Um, it's pretty clear that, you know, by that age, But even before that age Children do form very, very strong attachments to things to people to places Andi are very disrupted by removal or disprove or just change in general. And every time is different. Some Children will. That change will disturbed them and distress them or more than others. So again, we've got this constant tension running through the case. Lower of Judge is saying here some general rules and then lawyers attacking those general rules and arguing that they are arbitrary, that they don't make any sense and that they're not based on evidence or science or expertise. So they are general rules for what they're worth, and they're not inflexible, rigid, rigid rules to apply them or like guidelines. So have a look at Z. Moya, paragraph 13 breaks it down is really accessible. Five points that you can, you know, slip into your submissions you can have in your skeleton arguments on it just provides you with a framework that you can go through in double check. Okay, so what are we going to say about the fact that it's just 0 to 7 years that we're relying on rather than three years? Teoh 10 years or something like that on then? Also, bear in mind that there's some kind of sharp edges to is even more because it talks about also Theo importance off well young Children being completely focused on their families. So we can't really succeed in the in a case involving a young child unless there's some very pressing reason why they need to remain in the UK and also the fact that if there are short periods of residents, those just won't count for much when it comes to balancing, whether it's reasonable to remove the child right PD and others. That's, ah, short point really interesting case, which gives it a nice sweeping, my sweeping overview off the seven year will rule learning and judge craft. But the key points in this case is the where you've got an appeal involving several family members. I'm decision makers and judges shouldn't assess those cases in isolation from each other, like it's not appropriate for a judge to offer a Home Office caseworker to refuse a case on the basis that they are considering just the child's application to the rules. The child's private life claim is obviously going to be into connected with the claim of their parents. If their parents are part of the appeal, the appeal should be determined holistically. Yet another useful upper tribunal case for you is the case of Tree Born Again. The full citation is in the reference sheet for you, as is a lot of these cases. Andi, that's eight. I'm referring to a 2017 report off that decision. Note, however, that there is a 2015 decision which has now being superseded by M A. Pakistan. So you you do not want to be using Trebor 1 2015 I've actually seen cases where a judge has unfortunately referred to old Trebor one when they should have referred to Nutri born on that form the basis of a successful appeal by the secretary of state on the basis off that judge making an error of law Andi that cases had to go up to the upper tribunal on back down to the 1st 2 tribunal adding another 18 months to that appeal. So just make sure you kept the right tribal one because they're the implications of those two cases are very different, despite the name being exactly the same. So this is a decision by the former President McCloskey off the upper tribunal. The key part of this case, which I want to draw your attention to, is that paragraph 44 some way through the judgment? Andi. This is where, after quite a lengthy discussion of the case law and the principles, president with McCloskey gives his view on the correct legal test to apply two claims based on family and private life, which are non criminal cases and the thrust of it. Ease that following the decision in Re Pier, which I have discussed with you earlier on in Part three. What What the parents have to show in those situations is that there is a compelling case for they're them to remain in the UK, so that may sound on controversial. But the key point is that they don't need to show very compelling circumstances. It's a lower threshold than in criminal cases, and therefore a less powerful case or to be required off them. So it's important to take note of that case because again, it just helped to reinforce that. Although mm, Uganda filtered into M a Pakistan and has influenced that case on guidance on the seven year rule. Nevertheless, there is an important distinction to draw between criminal deportation matters and noncriminal deportation matters. And his president, former President McCloskey, stated, immigrants such as thes appellants confront a less daunting threshold than foreign national offenders and those convicted of serious crimes. So just before we move onto the next case, I'm gonna take a short detour through the Home Office policy document that is relevant to this area. As you well know. Probably by now, the Home Office is rarely satisfied with just setting out the rules in the immigration rules. They also provide policy guidance aimed at caseworkers. But it's publicly available, and it's relevant to the way in which cases are assessed. So ordinarily, caseworkers should follow the guidance unless the guidance is unlawful or unless there's good reason to depart from it. The relevant guidance in this case is from the Immigration Directorate instructions or the I D Eyes. Is there also known the title of the document that I've drawn out for you is is hideous. It's far too long for me to go through, but it starts with the words family migration. The full title is in the reference sheets on the date is February 2018. So it's it's the latest at the time off recording this. So this document seeks to provide guidance on the application of Appendix FM and within that guidance on private life claims based on seven years off residents. You remember from part one, hopefully, some discussion about the the long history off the seven year or relatively long. Because immigration rule, the immigration will rarely stands still for very, very long. Um, Andi, the origin of theseventies role being the government's recognition that Children take root that over time it becomes less suit less appropriate unless reasonable to interrupt a child's learning development education through removal, but also that has to be pitted against the need to have adequate controls on migration. So the key point here is that the current guidance, as its drafted recognizes all of this states. That and I quote, significant weight must be given to seven years continuous residence. The longer a child has resided in the UK and the older the age at which they have done so, the mortar balance will begin to shift towards it. Being unreasonable to expect the child to leave the UK and strong reasons will be required in order to refuse a case where the outcome off, where the outcome will be removal of a child with continuous UK residents of seven years or more. So all of that seems to reflect the impact off Lord Justice Elias is comments in M A Pakistan. There's a few illustrations off what strong reasons to deny someone the right to remain might be. The Home Office has picked out a couple of examples here where, for example, the child will be returning with the family unit to the family's country off nationality. And the parents have deliberately sought to circumvent immigration control or abused the immigration per process, for example, by entering into or remaining in the UK illegally, or by using deception in an application for leave to enter or remain. The consideration of the child's best interest must not be affected by the conduct or immigration history of the parents or primary carer. But these will be relevant to the assessment of the public interest, including maintaining it effective immigration control, whether this outweighs the child's best interests and whether in the round it is reasonable to expect the child to leave the UK So we see that a couple of things being reflected. First of all, the Home Office is trying to widen, um, adverse conduct to include relatively minor on the ground in the grand scheme of things, relatively minor instances off immigration breaches. It's routine for people to overstay in these cases. This is This is why Section E X one of Appendix FM was actually created. It's to provide a route for parents who have overstayed but who nevertheless have a genuine relationship with Children who have bean in the UK qualify after seven years residents to bring themselves within the immigration rules. So it's difficult to understand why the Home Office would pick out as an example persons who have sought to deliberately circumvent immigration control i e. Overstay. But the rest of that passage also reflects, I think, the TV Philippines situation. So this idea that when assessing best interests, you don't blame the child for the conduct of parents. But when assessing public interest, you can do so. Though the Home Office seemed to think that it's only under the public interest test but not the reasonableness test that such adverse conduct factors should be considered. Whether that makes much of a difference or not, I don't know. It will probably depend on each case, but just finishing off on that theme off. What is a powerful reason to refuse? Leave to remain once the seven year old seven years residence is satisfied? The case of Empty and E T, which is an upper tribunal case from 2018 has some relevant pointers. So this case starts off by acknowledging that young Children will often struggle to establish a right of private life. But it immediately recognises that as time goes by, that changes on the disruption to education in particular, can play. An important can be an important factor when considering the reasonableness off removal Now, in this case, although the outcome was obviously based on the facts, it's worth noting that the upper tribunal considered that the parent Mt. In this case who had received a community order so had been convicted. Often offense had been punished by way of community order for using a force document to obtain employment. So that sounds to me like an offence related Teoh, potentially it offending against immigration control, who had overstayed her visa for us a very substantial number of years and had made an asylum claim, which was rejected as false. In all of those circumstances, the upper tribunal concluded that nothing none of those issues, either separately or together, amounted to a powerful reason to refuse leave to remain based on the seven year old. So that gives you at least some flavor off just how powerful those reasons need to be. It can't just be basic adverse immigration history can't just being minor offending. It needs to be higher ticket item than that to justify, um, interfering with the child's right to remain under the seven year rule. So I hope that has Bean useful for you. We've now come to the end of the review of the case law. I'll leave you with this note as a final thought, which is that no. Two Children are the same on No 27 year old cases are the same as I said in part. One call appeal has recently recognized this in the case of R. F Jamaica 2017 case, where they say there's no such thing where Children are concerned, there is no such thing as an average case. I couldn't agree more with that acknowledgement. Andi. It's important for us always to fight these cases on the facts. Andi, on a case by case basis, adjusting the arguments, Andi arguing around the principles where those principles don't fit neatly onto the facts of any given case. Good luck with your seven year old cases. Let me know what you thought of this Webinar feedback is always really important. Whether you like Teoh when he didn't like it when you thought things jelled well together or whether it's stuff which you want covered, which I haven't covered, just let me know. Always appreciate feedback. Andi, I hope. See, when some of my other webinars on data law thank you so much. And good luck
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