England and Wales: Court of Appeal Finds It Reasonable for UK-Born 11-Year Old to Be Removed to Bangladesh

On June 24, 2021, the England and Wales Court of Appeal ruled in NA (Bangladesh) v. Secretary of State for the Home Department (Decision) that it was reasonable for a U.K.-born and raised child to be removed to Bangladesh, the home nation of the child’s parents, despite his never having left the U.K.

In this case, a Bangladeshi couple (the appellants) entered the U.K. on visitor and student visas and then overstayed. The appellants married in the U.K. and had two children: YS in 2010 and YA in 2017. Both children were born in the U.K. but have Bangladeshi nationality. In 2020, YS naturalized and became a British citizen.

In 2018, the appellants applied for leave to remain in the U.K. for themselves and their children on the grounds that YS had lived in the U.K. for seven years, in line with the “seven-year rule” (Immigration Rules pt. 7, para. 276ADE(1)(iv)), which protects foreign children from being removed from the country if they have lived in the U.K. for seven years and it would not be reasonable to expect them to leave.

The appellants’ application was initially refused and, in the first appeal, the Upper Tribunal held that although YS had lived in the U.K. for seven years and never left, it was reasonable for him to move to Bangladesh because his family would be moving with him. (Decision ¶ 8.) The appellants appealed to the Court of Appeal, raising an issue of “general importance about the correct approach to the [seven-year rule].” (¶ 4.)

The Seven-Year Rule and Reasonableness

The seven-year rule is complemented by sections 117B(6) and 117D(1) of the Nationality, Immigration, and Asylum Act 2002, which state that it is not in the public interest to remove a parent of a child who is British or has lived in the U.K. for seven years if it would not be reasonable to expect the child to leave the country.

In arguing reasonableness under the seven-year rule, the appellants relied on the “powerful reasons doctrine” as set out in MA (Pakistan), which states that it would be unreasonable to expect a child who had lived in the U.K. for seven years to leave the U.K. unless there were powerful reasons to the contrary.

Judgment

The Court of Appeal rejected the appellants’ position and dismissed the appeal in light of the Supreme Court’s decision in KO (Nigeria), which held that the only relevant consideration when assessing reasonableness is the child’s circumstances and not the parent’s conduct. However, in KO (Nigeria) it was noted that the immigration status and nationality of overstaying parents will be “indirectly material” as it would be reasonable for a child to be with their parents, and therefore a parent’s right to remain will be a material consideration. (Decision ¶ 26.)

The Court of Appeal held that “in a case falling under the seven-year provision where neither parent has leave to remain the starting point for a decision-maker is the common-sense proposition that it will be reasonable to expect the … child to leave the UK with their parents,” which is necessarily inconsistent with the “powerful reasons doctrine.” According to the court, “the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain.” (¶¶ 28–29.)

The Court of Appeal clarified that this ruling does not create a presumption against the seven-year child and his family. The fact that a child has lived in the U.K. for more than seven years will be a “material consideration” when determining an application for leave to remain. (¶ 30.)

The final question for the court was “what is the point of the seven-year rule if not to create a presumption in favor of the child?” The court admitted it was initially troubled by this question, but then answered by stating that the seven-year rule is a “one way provision which, if satisfied, definitively answers the public interest question in favour of the child without the need to undertake a general proportionality exercise.” (¶ 31.) This means that other considerations weighing in favor of removal are excluded.

Prepared by Chris Brain, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist

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