Article 3 of the Convention on the Rights Of The Child gives the child a right to have his or her best interests assessed and taken into account as a primary consideration in all actions that concerns him or her, both in the public and private sphere. The committee on the rights of the child identified this article as one of the four general principles of the convention for the interpretation and implementation of all of the rights of the child. The concept of a child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognised in the convention and the holistic development of the child. If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen.
On 9th December 2008, the Government announced the withdrawal of the seven year child concession (DP5/96) from that date. Before that date DP5/96 had for several years allowed some families with dependent children (i.e. children under 18 years who are not leading an independent life) to be granted indefinite leave to remain if the child or children had been living in the UK for at least 7 years. “
Whenever a decision is to be made that will affect the specific child or an identified group of children or children in general, the decision making process must include an evaluation of the possible impact positive, or negative of the decision on the child or children concerned. Assessing and determining the best interests of the child requires procedural guarantees and furthermore the justification of a decision must show that the right has been explicitly taken into account. In this regard, state parties should explain how the right has been respected in the decision, what has been considered to be in the childs best interest, what criteria it is based on and how the child’s interest have been weighed against other considerations.
The seven years rule has seen many changes. Previously a presumption was that a child who has lived in the UK for seven continuous years would be permitted to remain in the UK along with their parents. This was under policy DP5/6 by the Home Office. This policy was withdrawn in December 2008. In 2012 the seven years residence period for a child being qualified for leave to remain was reinstated and was ratified into the Immigration Rules. The seven year rule for children was added with the understanding that children would have been integrated and adapted to life in the UK within this period of time to a degree that to remove them would be detrimental to their well-being.
However, it is not an automatic right for the parent or the child to remain in the UK. The Home Office will decide in cases involving children, if it would it be in the best interests of the children to remain in the UK and whether to remove them together with their parents, would be unreasonable. Section 55 of the Borders Citizenship and Immigration Act 2009 states that the Secretary of State is under an obligation to safeguard and promote the welfare of children in the UK including those children who are migrants.
The case of MA (Pakistan)  concerned the seven year rule and the central issue in this case was what factors should Judges consider when deciding whether it would be reasonable to expect such a child to leave the UK. The disappointing answer was it is free for all. Judges may consider the conduct and immigration histories of the parents when deciding whether it is reasonable to expect children to leave the UK and the seven years rule is not an automatic victory. However, the case also leaves some scope for hope because the Court said that the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons. First, because of its relevance to determining the nature and strength of the child’s best interests and second because it is established as a starting point that leave should be granted ,unless there are powerful reasons to the contrary.
Ordinarily, we advise people about the rule, both in the context of deportation and non-deportation Article 8 cases. However, it is our impression that the decisions are not always square with the principle that children should not suffer for the sins of their parents. The Court separates two issues, the best interests of the child and whether it is reasonable to expect them to leave the UK. When considering the best interests of the child, the conduct of the parents is irrelevant. In keeping with the Supreme Court case of ZH (Tanzania) and Zoumbas. However, when considering the issue of reasonableness, wider public interest factors may be weighed in the balance, including the conduct and immigration status of the parents.