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.
Cases where DP5/96 will continue to apply
Chapter 53 of the Enforcement Instructions and Guidance explains when DP5/96 will continue to apply after 9 December 2008. This will be the case if before 9 December:
DP5/96 has been considered in an appeal which remains outstanding
an appeal relying on DP5/96 has been allowed
a court or tribunal has directed the UK Border Agency to apply (i.e. consider) DP5/96
the UK Border Agency has acknowledged receipt of an application relying on DP5/96
the UK Border Agency has begun to consider DP5/96
The effect of the withdrawal of DP5/96
The Minister’s statement on 9 December 2008 makes clear that the withdrawal of DP5/96 is because the Government thinks it is no longer needed. The reference to the Human Rights Act 1998 relates to the European Convention on Human Rights, which that Act adopts into UK domestic law. In particular, it relates to Article 8 of the Convention – the right to private and family life.
In many cases where DP5/96 would have applied, it will be possible to rely on Article 8.However, two important differences between the DP5/96 and Article 8 must be noted:
Article 8 is not restricted to children who have been in the UK for 7 years or more.
There may be cases where a child has been in the UK for less than 7 years in which removal will not be proportionate.
Where it is decided that removal shall not proceed because of Article 8, this usually leads to a grant of 3 years Discretionary Leave.