Children: Seven Year Rule / Judicial Disregard

Problem

A couple, one Asian, one Brazilian had two children who were born in the United Kingdom and by the time of application had attained seven years of age. The children faced removal to either country of their parents whose language they did not speak, which they had never visited and in the former case would have faced ostracism on account of their circumstances.

Strategy

Evidence of their inability to assimilate to their mother’s country had been presented to the Home Office at the time of application.

Finding appropriate experts on the education system in Brazil, proved to be difficult. Approaches were made in both English and Portuguese, to fifteen separate academics and institutions, in Brazil, North America, and the United Kingdom all with some published claim to expertise without eliciting a single response. Eventually we noted that a British professor of Education had given a talk at a seminar in Brasil and an enquiry led to an authoritative referral.

By the time of the appeal a five hundred page bundle included a report from a Professor at Oxford University on the eldest child’s language and assimilation prospects in the mother’s home country, supported by an informed witness on the child’s difficulties into assimilation with the diaspora here. A Portuguese language assessment by an academic in the United Kingdom and a report on the education system in Brazil by a professor at the University Centre of Brasilia. He additionally had been the visiting professor to The London School of Economy (London, UK), Ecole des Hautes Etudes en Sciences Sociales (Paris, France), Monash University ( Melbourne, Australia), City University of New York (New York, USA), Universidad Autónoma de Madrid (Madrid, Spain), Universidad Autónoma de Mexico (Mexico City, Mexico), Universidad Valencia (Valencia, Spain), Buenos Universidad Aires (Buenos Aires), the Inter - American University of Puerto Rico (Puerto Rico, USA), Universidad Complutense (Madrid, Spain), University of São Paulo (Ribeiräo Preto, Brazil), the University of Brasilia (Brasilia, Brazil), among others.
The report from Oxford University ran to some thirty one pages, and the combined reports on Brazil to some twelve pages.

Solution

The Immigration Judge had the bundle in front of her at the start of the day. Our matter was put back to after Lunch.
At the commencement of the hearing , the Immigration Judge no longer had the file with her. We asked if she could arrange for it to be brought and she declined. Through the course of the hearing, we repeated the request twice and the request was declined again.
The appeal was refused, with the experts reports being dismissed with a terse description of being : “ quite limited and biased.” In so doing she only referred to two of the three experts reports submitted.

The determination was overturned at the Upper Tribunal and remitted for a full hearing , and on this occasion, the appeal was allowed.

Comment.

The Rule that permits children who have stayed in this country for seven years or more is an example of how the consensus on what is reasonable seems to shift becoming stricter over time.

There is a discretionary element to the seven year rule, as the applicant needs to demonstrate that after having this time in the United Kingdom it would not be reasonable for a child to relocate to another country.

Whilst the test appears to remain the same, ( namely a presumption that a child should be permitted to remain absent specific misconduct,) the emphasis appears to have shifted. Hitherto, the disruption by uprooting a child from the country of habitual residence was seen as sufficiently unreasonable to meet the test. The analysis by the Upper Tribunal in such cases as Trebwothan v Secretary of State for the Home Department reveal a tendency to closely examine the circumstances on arrival requiring the applicant to prove what would happen to them in the country to which they would be removed.

The appeal succeeded because from the start we relied upon the facts that could be supported by the evidence ( namely the difficulty of assimilation to any destination country ), rather than the consensus of what was reasonable at the time of application which would have been insufficient by the date of appeal.

The appeal almost failed because of our own reliance on Search Engines to identify appropriate experts in new areas. Google’s very facility blinds us to its limitations, in this case failing to identify the pre-eminent authority in the field whose reputation is world wide.

We state this very clearly, as we are aware that the reader may have used such a Search Engine to reach this page and would encourage those seeking Immigration Advice not to rely merely upon internet presence to identify appropriate legal representation.

Without the independent expert’s evidence provided the judicial conduct would have gone unchallenged and two children would now have been sent to a country which was not their home and where they would have had the greatest of difficulties in assimilating.