Post
by benneviss » Mon Jan 20, 2014 2:22 pm
Thanks for taking the time to read the judgement . You are very senior on this forum so may I ask you following:-
1. Does this judgment apply to a new application made under the new rule i.e. after 13 December 2012 .
"An amendment to the private life rules will narrow the circumstances in which a child under the age of 18 can apply for leave to remain on the grounds of private life to those circumstances in which it would not be reasonable to expect the child to leave the UK."
"20. This carries the clear implication that, before the amendment, a child under 18 did not have to show that it would be unreasonable to expect him to leave the United Kingdom. It was enough that he was under 18 and had been living here for seven years. The First-tier Tribunal was therefore wrong to suppose that the two younger appellants could not succeed under the Rules. They do succeed."
2. What are the interferences of following para? Is the child has freestanding right to remain in the UK under the rules ?
The inconsistency between paragraph 276ADE(iv) and EX.1(a) has thus produced the bizarre result that, in theory, the children could be left behind by their parents and would have to be cared for in the United Kingdom at public expense. That unlikely scenario is a consequence of the Rules themselves. But the outcome of the parents' appeals could, in theory, be different under Article 8 outside the Rules. I remarked above that Judge Cooper's decision on Article 8 would be sustainable in the absence of one proviso. What casts his decision into doubt is that he assumed that the children had no freestanding right under the Immigration Rules to remain in the United Kingdom. If he had not proceeded under that misapprehension, the Article 8 balancing exercise could in theory have produced a different result.
Am I right to say that if the child has been living more than 7 years has a right (freestanding ) to remain in the UK. ? In other words - "but it must also not be reasonable to expect them to leave the UK " does not carry any significance.
So if CW reject your application you can rely on this judgment.
