Re: MN1 section 3(1) application refused

CR001 wrote:

alladin wrote:Thanks for replying. She has been in the UK for 1.5 years now. She came to the UK when she was 1.5 years old. She is 2 years and 11 months now.

What is the child's current visa status?

I am of the opinion that you will struggle to get a favourable response with a reconsideration request. The rules are clear that a child born abroad is expected to hold ILR. The argument that HO can use is that she is small and can adjust to her home country given that she has only been in the UK for a short time. You might have had more on your side if your spouse was also British.

If I was in your shoes, I would apply for ILR for the child and then apply for citizenship when your spouse does, to keep things simple and less complicated.

Thanks for your thoughts. My daughter is on "dependent of settled person" visa valid till around Oct, 2016.

I agree with you that ILR route is less complicated and simple.

I am planning to make it clearer (via reconsideration request) that since both parents have made UK their main home (father -BC and mother on ILR), child's future clearly lies in the UK and HO have a duty to protect the child's best interests and also referring to sections 9.17.2, 9.17.4, 9.17.11. The refusal letter does not mention about Section 55 which I think they should have considered.

alladin wrote:

alladin wrote:

Amber wrote:Section 55 Borders, Citizenship and Immigration Act 2009 Imposes a statutory obligation for the decision maker to consider the best interest of the children in such cases. Where one parent is settled and the other is British it appears contrary to section 55 not to allow such an application, despite guidance. A reconsideration request highlighting section 55 and the case of FI v Secretary of State for the Home Department [2014] EWHC 2287 (Admin), should prove successful, include a letter from their school showing a clear settlement and intention to remain in the UK.

hi,

So my daughter's (3 year old) section 3(1) application was refused about 2 weeks ago. I am planning to apply for reconsideration as myself (BC) and my wife (held ILR before the Section 3(1) application was made) has established our lives here and the child's future lies in the UK.


The refusal letter stated that "normally, a minor will not be registered if she not settled in the UK as defined by immigration laws. And there were no grounds found to treat this case exceptionally".

I would like to site the above case Amber has suggested and probably use the information in this thread http://www.immigrationboards.com/britis ... 0251.html#. If there is any other case I can use, could you please let me know?

It was not mentioned in the refusal letter that I have the option to ask for reconsideration of this decision if I dont agree. Is this expected or is there a change to not allow reconsideration requests for these applications?

thanks,
alladin

Alladin, did you end up asking for reconsideration? What was the outcome (if any) if you do not mind me asking? In a similar situation here.

bilal_zain wrote:hi amber,
what do you think whether my daughter would be eligible for MN1 registration. She was 9 months old when she came to UK as my dependent and has been here since then (almost 5 1/2 years). I am on ILR and will apply for BC next year. will it possible to get her registered for BC once I get UK nationality or still she would have to apply for ILR and then BC? in previous posts it has been suggested to other people that if child is young and spent most of their life in UK then chances are bright to get BC registration. thanks in advance
Regards

Amber wrote:Section 55 Borders, Citizenship and Immigration Act 2009 Imposes a statutory obligation for the decision maker to consider the best interest of the children in such cases. Where one parent is settled and the other is British it appears contrary to section 55 not to allow such an application, despite guidance. A reconsideration request highlighting section 55 and the case of FI v Secretary of State for the Home Department [2014] EWHC 2287 (Admin), should prove successful, include a letter from their school showing a clear settlement and intention to remain in the UK.

Bilal, did you end up applying for your child's citizenship? What was the outcome if you do not mind me asking. I am in a very similar situation with my 2 children.

In my personal point of wiew there is no chance to getting Registration certificate for children without one of his/her perant Naturalisation, I was applied for my children in April 2013. The home office refused my 2 son's application who were born outside UK and approved one son who were born in the UK. Even my children came to UK in August 2006 that time the one is just 15 month and second one is 4 and half year. Physically my children spent his most of life in UK without absence. They mentioned in the refusal letter the consideration will be given to those who's one of perant naturalised the other would be settled person. That is why next year when you applying for your self you could applying for your children then will be consider. Then in February 2014 I have applied Naturalisation for my self and also submitted application for my children but unfortunately we are still waiting for decision even its past 2 year. Anyway best wishes.
Babe khyber

babe_khyber wrote: The home office refused my 2 son's application who were born outside UK and approved one son who were born in the UK.

Children born in the UK are entitled to register once parent has PR/ILR. They cannot refuse that.

Children born outside the UK to non-British citizens at the time can be registered at the discretion of the Home Secretary but will mostly not refuse providing at least one parent has naturalised or is applying at the same time.

ohara wrote:

babe_khyber wrote: The home office refused my 2 son's application who were born outside UK and approved one son who were born in the UK.

Children born in the UK are entitled to register once parent has PR/ILR. They cannot refuse that.

Children born outside the UK to non-British citizens at the time can be registered at the discretion of the Home Secretary but will mostly not refuse providing at least one parent has naturalised or is applying at the same time.

The moderators keep on telling that the application will be refused, even if both parents are already naturalized (which is a case with me and my wife; our kids were born outside UK and currently on Tier 1 dependant). What is your personal experience?

Yes the advice you have been given is right. I didn't realise your children were so old. I believe they will need to meet good character requirements and have settled status also. No need for English language test or Life in the UK though and no ceremony required upon successful application.

As said the decision is purely discretionary.

ohara wrote:Yes the advice you have been given is right. I didn't realise your children were so old. I believe they will need to meet good character requirements and have settled status also. No need for English language test or Life in the UK though and no ceremony required upon successful application.

As said the decision is purely discretionary.

Based on personal experience...
Settled status/free from immigration time restrictions: yes.
Fulfill 'good character' requirements if over age of 10 years.

YOU don't need ILR to register your child. A child who is not up to the age of 10 does not necessarily need leave to remain (although expected). You have no other sibling(s) who are British.

The law does not necessarily require both parents to be settled. One parent can be British and the other Settled or One parent can be British and not settled.

If you are refused, apply Judicial Review (though expensive).... they know you wont be able to afford it.

There is no time limit to apply for administrative review for extra money. The best is Judicial Review where intelligent Lawyer will deliberate on it.

These refusals are done by GCSE Case Worker who hold no degree... I have read and fully comprehended section 3(1) and will apply for my boy next year without ILR & mother NOT settled. I am the only one with British citizenship

BIG Dobby wrote:If you are refused, apply Judicial Review (though expensive).... they know you wont be able to afford it.

Which would cost more, ILR or JR?

vinny wrote:

BIG Dobby wrote:If you are refused, apply Judicial Review (though expensive).... they know you wont be able to afford it.

Which would cost more, ILR or JR?

If you are successful, the cost will be refunded in full except your application fee(s)...
Don't be afraid... It is written in black n white

alladin wrote:

CR001 wrote:

alladin wrote:Thanks for replying. She has been in the UK for 1.5 years now. She came to the UK when she was 1.5 years old. She is 2 years and 11 months now.

What is the child's current visa status?

I am of the opinion that you will struggle to get a favourable response with a reconsideration request. The rules are clear that a child born abroad is expected to hold ILR. The argument that HO can use is that she is small and can adjust to her home country given that she has only been in the UK for a short time. You might have had more on your side if your spouse was also British.

If I was in your shoes, I would apply for ILR for the child and then apply for citizenship when your spouse does, to keep things simple and less complicated.

Thanks for your thoughts. My daughter is on "dependent of settled person" visa valid till around Oct, 2016.

I agree with you that ILR route is less complicated and simple.

I am planning to make it clearer (via reconsideration request) that since both parents have made UK their main home (father -BC and mother on ILR), child's future clearly lies in the UK and HO have a duty to protect the child's best interests and also referring to sections 9.17.2, 9.17.4, 9.17.11. The refusal letter does not mention about Section 55 which I think they should have considered.

U need to seek Judicial review after administrative review

Bear in mind that British citizenship is a privilege and not a right, unlike visa applications submitted under the Immigration Rules.

Casa wrote:Bear in mind that British citizenship is a privilege and not a right, unlike visa applications submitted under the Immigration Rules.

We all know that... It almost becomes a right where one or both parents are British citizen; you cannot remove a child who has overstayed his/her visa when one or both parents are British citizens...

I hope you understand that.

There is no 'hard and fast' rule. All I am saying is if you can wait for the other party to secure ILR, that's fine. But following what is laid down on Section 3 (1) 9.17.9:

''We should normally expect that:

 at least one parent is a British citizen

or

 one of the parents has applied to be registered or naturalised as a
British citizen and the application is going to be granted (if the
parent’s application is to be refused, we should normally refuse the
minor’s application as well)

and

 the other parent is either settled in the United Kingdom (see Annex
F to Chapter 6);

or

 whilst not settled, is unlikely in the short or medium term to be
returnable to his or her country of origin (eg s/he has been granted
Discretionary Leave), and there is otherwise no reason to think
that the child’s future does not lie in the United Kingdom.''

They wrote it; I did not write. So discretion is meant to be applied when you merit it. See Naturalisation at Discretion

I'm fully aware of Naturalisation at Discretion, but note that I haven't presumed that 'we all know that'.

satish333 wrote:Hi there,
My kids MN1, section 3(1), application is refused by home office.

Home office letter says..

The registration of minors under this provision is at the secretary of state's discretion. Normally a minor will not be registred if, as appears in this case, he/she is not 'settled' in the UK as defined by immigration laws. A minor who is, or is the dependant of, a EEA national is not 'settled' in the UK until he/she has either been granted indefinte leave to remain here or acquired permanent residence under EU law, neither of which is so at present. The application has neverthless, been carefully considered to see whether there were sufficient grounds for treating it exceptionally. However, suffient grounds could not be found to exercise discretion in this case. The application has therefore been refused

We met all the required criteria as below :

1. I am a british citizen ( by naturalisation)
2. my wife on ILR
3. kids completed 2 years residence in UK
4. Kids are on depended visa. we have NOT applied ILR for them as this is NOT required if they meet other criteria as stated below in

SECTION 3(1) CHAPTER 9.17.24, CHAPTER 9.17.25 AND CHAPTER 9.17.26 OF VOLUME ONE (1) OF THE BRITISH NATIONALITY ACT 1981 ARE AS FOLLOWS:

https://www.gov.uk/government/uploads/s ... apter9.pdf

Conditions of stay
--------------------
9.17.24 We should normally expect a minor to be free of conditions of stay because the future of a child whose stay is restricted does not clearly lie here (see 9.17.2). Registering a minor who is on conditions has the effect of cancelling their conditions because, on becoming a British citizen, the minor would cease to be subject to immigration control.

9.17.25 We should therefore normally refuse an application for the registration of a minor whose stay in the United Kingdom is restricted to a specific period.

9.17.26 But if one or both parents are British citizens who have come to the United Kingdom to live permanently, then this may be less important, if:

a) the minor meets the other normal criteria for registration set out in 9.17; and

b) the parents meet the criteria set out in 9.17.9-9.17.14 above, then we should consider whether registration would be
appropriate.

I clearly mentioned the above quotes in my MN1 application. It seems the case worker did not bother to look at it at all.
I thought of taking this to tribunal. But home office letter says, I can NOT appeal against them.

Please advise how to proceed with this now. Another thing is my kids depended visa is now expired.

Please help.

Raj

You need to challenge it; HO decision was totally wrong

BIG Dobby wrote:

satish333 wrote:Hi there,
My kids MN1, section 3(1), application is refused by home office.

Home office letter says..

The registration of minors under this provision is at the secretary of state's discretion. Normally a minor will not be registred if, as appears in this case, he/she is not 'settled' in the UK as defined by immigration laws. A minor who is, or is the dependant of, a EEA national is not 'settled' in the UK until he/she has either been granted indefinte leave to remain here or acquired permanent residence under EU law, neither of which is so at present. The application has neverthless, been carefully considered to see whether there were sufficient grounds for treating it exceptionally. However, suffient grounds could not be found to exercise discretion in this case. The application has therefore been refused

We met all the required criteria as below :

1. I am a british citizen ( by naturalisation)
2. my wife on ILR
3. kids completed 2 years residence in UK
4. Kids are on depended visa. we have NOT applied ILR for them as this is NOT required if they meet other criteria as stated below in

SECTION 3(1) CHAPTER 9.17.24, CHAPTER 9.17.25 AND CHAPTER 9.17.26 OF VOLUME ONE (1) OF THE BRITISH NATIONALITY ACT 1981 ARE AS FOLLOWS:

https://www.gov.uk/government/uploads/s ... apter9.pdf

Conditions of stay
--------------------
9.17.24 We should normally expect a minor to be free of conditions of stay because the future of a child whose stay is restricted does not clearly lie here (see 9.17.2). Registering a minor who is on conditions has the effect of cancelling their conditions because, on becoming a British citizen, the minor would cease to be subject to immigration control.

9.17.25 We should therefore normally refuse an application for the registration of a minor whose stay in the United Kingdom is restricted to a specific period.

9.17.26 But if one or both parents are British citizens who have come to the United Kingdom to live permanently, then this may be less important, if:

a) the minor meets the other normal criteria for registration set out in 9.17; and

b) the parents meet the criteria set out in 9.17.9-9.17.14 above, then we should consider whether registration would be
appropriate.

I clearly mentioned the above quotes in my MN1 application. It seems the case worker did not bother to look at it at all.
I thought of taking this to tribunal. But home office letter says, I can NOT appeal against them.

Please advise how to proceed with this now. Another thing is my kids depended visa is now expired.

Please help.

Raj

You need to challenge it; HO decision was totally wrong

Why have you resurrected an old post from 2012? satish333 hasn't logged on to the forum for 12 months!

Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

alladin wrote:Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

There is no timeline or set timeframe for HO to process reconsiderations. They will take as long as they deem necessary.

CR001 wrote:

alladin wrote:Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

There is no timeline or set timeframe for HO to process reconsiderations. They will take as long as they deem necessary.

Thanks for your reply. If I want to challenge their decision (via JR), can I do it now (even though a reconsideration request is made) or has it become time-barred as I received the decision in Dec, 2015?

alladin wrote:

CR001 wrote:

alladin wrote:Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

There is no timeline or set timeframe for HO to process reconsiderations. They will take as long as they deem necessary.

Thanks for your reply. If I want to challenge their decision (via JR), can I do it now (even though a reconsideration request is made) or has it become time-barred as I received the decision in Dec, 2015?

Is your topic related to an MN1 refusal?

It might be beneficial if you post your own topic, reason for refusal etc, rather than just tag on in a sticky thread.

CR001 wrote:It might be beneficial if you post your own topic, reason for refusal etc, rather than just tag on in a sticky thread.

Thanks. My case is discussed in this topic itself (please see previous posts). Basically I applied for my daughters naturalisation under Section 3 (1) as myself being BC and my wife having ILR but was refused on Dec, 2015.

alladin wrote:

CR001 wrote:It might be beneficial if you post your own topic, reason for refusal etc, rather than just tag on in a sticky thread.

Thanks. My case is discussed in this topic itself (please see previous posts). Basically I applied for my daughters naturalisation under Section 3 (1) as myself being BC and my wife having ILR but was refused on Dec, 2015.

JR is very expensive. If you have that much money to spend, then ILR and then BC would probably cost less.

Alladin,

My candid advice is to approach a solicitor since it has lingered for more than 6 months to get a response from HO. Once a pre-action protocol is issued wrt your child's application, I swear HO will release her certificate because they cant successfully challenge it in JR. I Know 2 cases right now

I dont know where you are based but there are charities that represent children in Britain... Look for one or in Leeds, there are solicitors that charge £500 to £900 to start the process. Basically, why your daughter was refused was mainly because you have no other british child(ren) at the time time of application; so the strength of the ties in the UK was not considered very strong - even though, length of residence is less important for applicants < 10yrs as they claimed.

Those solicitors will assess your circumstances, once there is a strong conviction then it will be challenged! when you come out successful, you will get all you money back except application fee. DO NOT CHICKEN OUT...

You should make a case asap before she turns 10... Dont wait... U will n MUST surely triumph.

The only certainty (as per the relevant statute) is that registration of a foreign-born child is at the Home Secretary's discretion.

In some cases (for example, when the child is not settled and thus free from immigration time restrictions) this can mean discretion on discretion on discretion.

Even a British sibling will not necessarily seal it.

9.17.12
An application which falls outside these criteria should not normally be approved, even if there are British citizen siblings or siblings with
entitlements to registration as a British citizen, unless we are satisfied that registration would be in the child's best interests

https://www.gov.uk/government/uploads/s ... 150402.pdf

It's hard to see the logic behind a conviction that threats of a PAP or JR will turn discretion into entitlement.