FY (Bangladesh) v Secretary of State for the Home Department

For paragraph 276ADE(1)(iv) of the Immigration Rules, seven years’ residence in the United Kingdom is a starting point, not an automatic right to remain. The question is whether, in all the circumstances, it is reasonable to expect the child to leave. Relevant considerations may include the child’s age, the parents’ limited immigration status, the absence of any legitimate expectation of permanent residence, return with the family, and likely hardship. The Rules should be considered before any separate Article 8 assessment. Where return with the family is reasonable, a separate Article 8 claim may have no realistic prospect of success.

This was a renewed application for permission to appeal by a Bangladeshi family of four. The first appellant had lived in the United Kingdom with successive grants of student leave. Her son, A, had been born in the United Kingdom and had lived there for more than seven years when the applications for leave were made.

The First-tier Tribunal allowed the appeals on human rights grounds. The Upper Tribunal set that decision aside and remade the decision, concluding that it was reasonable for A to return to Bangladesh with his family and that Article 8 did not require the family to remain. The central issue was whether the Upper Tribunal had erred in applying paragraph 276ADE and in considering the parents’ immigration position when assessing reasonableness.

1. Renewed application refused. There was no arguable basis for showing that the Upper Tribunal’s conclusion under the Rules was wrong. The application therefore had no realistic prospect of success.
2. Under paragraph 276ADE(1)(iv) of the Immigration Rules, the seven-year residence requirement is the starting point for considering whether it is reasonable to expect a child to leave the United Kingdom. It does not create an automatic entitlement to leave to remain. The word reasonable has its ordinary evaluative meaning and requires consideration of the circumstances of the particular case.
3. The assessment may take account of the child’s age and the parents’ immigration position. Seven years’ residence inherently carries less weight the younger the child. Successive grants of limited student leave, carrying no expectation of permanent residence, were capable of being treated as a precarious immigration position. Taking that circumstance into account did not introduce an exceptional-circumstances test.
4. The fact that the child would return to Bangladesh with the whole family was relevant. The circumstances were commonplace, and there was no substantial hardship or prejudice making return unreasonable. The reference to a policy key test merely identified the starting point for the assessment; it did not establish that leave must be granted once seven years’ residence was shown.
5. The established sequence was to consider entitlement under the Rules first and, only if necessary, consider Article 8 outside them. The appellant accepted that, if A could not satisfy the Rules, there was no separate Article 8 claim with a realistic prospect of success in these circumstances. The renewed application was refused.

• Court of Appeal (Civil Division): On 20 October 2015, Lord Justice Burnett refused the renewed application for permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): On 7 October 2014, Deputy Upper Tribunal Judge Chana allowed the Home Office’s appeal, set aside the First-tier Tribunal’s decision and remade the decision, finding that it was reasonable for A to return to Bangladesh with his family. Permission to appeal was refused on 16 December 2014.
• First-tier Tribunal: On 28 August 2014, Judge Moore allowed the family’s appeals on human rights grounds, apparently outside the Rules.