Child settlement application refused

[Hubert]

Hi,

I need some advice now. the background is I'm granted ILR through 5 year Tier1(g) in June 2014. My wife is granted PBS dependent in Aug 2014. Now I'm applying for my son's settlement visa from abroad. His application is refused for the reason my wife is not settled in UK(immigration rule part 8 paragraph 297)

However my son was born in UK in 2012 Jan. And he returns to home country in 2012 April and stays with his grand parents till now.

I've read numerous similar topic here and the answer is very clear that child born in UK can apply for citizenship according to law 1(3). If citizenship is allowed, the settlement should not be a problem, right? I also get same confirmation from one officer in Crydon on the day(in this June) I apply for settlement.

I wonder is there something changed now? Now I view the home office website and I can't find a place clearly saying what applies to Child born in UK.

I need to get myself clear before deciding to appeal or switch a visa catelogue.

Many thanks for any help.

Kind regards,

Hubert

[Lucapooka]

The refusal of the visa was correct but your son should have been given a limited leave to remain visa in line with your wife's extant leave. Aside from that, he is entitled to apply for BC subject to the process of registration, but you can't expect the visa mission in his country to take that into account when assessing a visa application. The two issues are not related so they simply refused the visa based on his circumstances as a foreign applicant for visa rather than a potential BC.

I wonder why then did not grant limited leave to remain with a view to settlement? What did the refusal notice say? Is there some doubt that you have sole-responsibility?

[Hubert]

Thanks for your reply.
Non limited leave to remain is given. It's a complete refusal. It only allows us to appeal or reapply.
The parent relationship is very clear. Both parents are staying in UK with valid permit and stay in married.
The letter doesn't question anything and the decision is purely based on the fact that not both of the parents are settled.

I feel the officer may neglect or miss the fact the child was born in UK though we provided his birth certificate.

Is there any advice on what is the best way forward? Do we have the chance to appeal and alter the decision?

Thanks again,

Hubert

[Lucapooka]

I feel the officer may neglect or miss the fact the child was born in UK though we provided his birth certificate.

I've already indicated that this fact is not relevant to a visa application. The application is only considering his status as a foreign national wishing to settle in the UK with parents who are living there. If he were applying on the basis of being British, the application would still be refused as British citizens are not issued with entry visa to the UK. He would be told to apply for a British passport and enter using that.

I can see two options. Register the child as British and get a passport, or appeal the refusal asking for a limited leave to enter visa based on the mother's extant leave. Good luck!

[vinny]

The first option seem simplest as Registration is by entitlement.

[vinny]

Else, child may apply as a PBS dependant, in-line with mother's.

[Hubert]

Make a flesh application means I have to pay the visa fee again, which nowdays is simply a robbery under the law.
At this stage, I don't want to change my son's passport yet as we both have not swithed and not decided to switch yet.
I wonder what's the chance to win a limited leave to remain by appealing? Will appeal take long?

Anyway, I post here is also to warn people with similar situation to avoid repeating the mistake. I'm completly misleaded by many parties when I consult my case. This is an expensive lesson.

[Hubert]

Any one knows if there is a chance for appealing to get limited leave to remain?
Or I was completly in the wrong catelogue.

[Obie]

Child does not need to apply for PBS dependent.

Child can be given leave in accordance with his parent or Parents, which ever is longer.

As you have ILR, the longer will be an Indefinite Leave to Enter.

The decision of the ECO is clearly not in accordance with the penultimate paragraph of 306.

The child is entitled to a settlement visa.

It appears 304 -308 was not given any consideration.

You are correct, ECO had no right to refuse settlement.

The fact that you have ILR will not affect his eligibility.

Then apply for Registration at the same time

[vinny]

As there seems to be no specific application form (online or paper) under 304-308, many ECOs may be unaware of this category.

[Obie]

To be honest vinny, it is just nonsensical. What is the point in having rules, if you are not going to put mechanisms in place to give effect to it. Utterly ridiculous.

OP should stand his ground. The law provides for his child to obtain a settlement visa, he must not back down in my opinion.

He should draw the attention of the ECO to 304-308.

He will be entitled to have his appeal allowed under 86(3)a

[vinny]

I agree that 304-308 should have been considered and ILE granted.

Where the parent or parents have or are given periods of leave of different duration, the child may be given leave to whichever period is longer except that if the parents are living apart the child should be given leave for the same period as the parent who has day to day responsibility for him.

[Hubert]

Dear Obie,

I wish so much you were the ECO. This is my first instinct thought that the ECO did not consider the fact the child was born in UK.
The Rule 304-308 should be considered and is almost perfect for my son's application.
However there is a condition caught me:

305(v) (where an application is made for leave to enter) has not been away from the Unitied Kindom for more than 2 years.

Unfortunetly my son left UK in April 2012, so he exceeds two years now.

Does this mean 305 is not satisfied fully so the application will be rejected? Though the ECO doesn't mention this in the refusal letter.

Also thanks Vinny very much for the advice.

Many thanks,

Cheers,

Hubert

[Obie]

Apart from the fact that i don't think they will be able to pay me enough, I don't think they will employ me as an ECO, for the simply fact that i will apply the law to the letter and spirit. I am not sure that is a quality and attribute that will qualify a person for the position of an ECO.

[Hubert]

Hi Obie,

You probably are right. Now days, the standard for a ECO is how much cases he can process every day and how much cases he can rejected easily. Either case ensures he can make most profit for the home office.

Back to topic, I still have some confusion. See 309:

309. Leave to enter the United Kingdom where the circumstances set out in paragraph 304 apply is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 305 is met

It mentioned each condition should be satisfied.

I can't see this link between 305(i)(b) ( assume this is what you refer as section B) and condition v in any 306 to 309.

[Hubert]

My son is applying for leave to enter as he is out of UK now.

[Hubert]

Sorry about being maybe overly cautious.

What is the difference of "Leave to enter" and "Leave to remain"? These words are too professional to me. Can I understand the previous refer to the application made outside of UK and the latter refers to that in UK?

So is my son falling to the cateloge of "leave to enter"? Then according to the law, the officer needs to satisfy (ii) to (v).

Thanks again.

[Obie]

It appears that the rules makes a distinction between Leave to Enter and Leave to remain in this case. In the rules the conditions for Leave to Enter and Leave to remain are usually the same.

The 2 years may cause some problems, but the fact remains that he was not refused on that basis.

I guess when he enters he will be entitled to Indefinite Leave to Remain, so you may have to rely on the PBS dependent for entry, due to the length of time he spent overseas.

Once he is in, that provision will cease to have application.

[Hubert]

Thanks Obie, that's clear to me now.
So if I appeal on this ground, the 2 years rule may be the new ground of rejection.

My friend who closely studies the home office online system suggests that I can appeal with the reason that the online system doesn't distinguish between settlement and in view of settlement. So when making the application, the generated application form is same and shows as settlement application. It seems the ECO should grant a limited leave to remain (up to 27months) under 301. Will this be valid?

By the way, I can appeal within UK with oral hearing for the case oversea, right? Also is there somewhere a guildline for appeal processing time? I don't know how the appeal works in the home office system for cases processed at oversea post. Do they return the appeal back to the oversea post or simplied reiviewe in UK?

[vinny]

Simply,"Leave to enter" is granted to applicants from outside the UK, by an ECO (Entry Clearance Officer) issuing an entry clearance/visa or by an IO (Immigration Officer) at a port of entry. "Leave to remain" is granted to applicants inside the UK.

Unfortunately, if child was away from the UK for longer than two years, then 305 may fail and the application may also be refused under 309. This seems to be analogous with refusing returning residents who had been absent from the UK for over two years.

[vinny]

I believe that the term "not exceeding 27 months" was meant to bring the child's leave in line with a parent's who was granted a settlement spouse visa under 282.

[Obie]

Thanks Obie, that's clear to me now.
So if I appeal on this ground, the 2 years rule may be the new ground of rejection.

My friend who closely studies the home office online system suggests that I can appeal with the reason that the online system doesn't distinguish between settlement and in view of settlement. So when making the application, the generated application form is same and shows as settlement application. It seems the ECO should grant a limited leave to remain (up to 27months) under 301. Will this be valid?

By the way, I can appeal within UK with oral hearing for the case oversea, right? Also is there somewhere a guildline for appeal processing time? I don't know how the appeal works in the home office system for cases processed at oversea post. Do they return the appeal back to the oversea post or simplied reiviewe in UK?

301 will not apply as you wife did not enter with a view to settlement. She entered as a PBS migrant dependent. There is no guarantee that she will get settlement, or it will lead to settlement.

Try working on the Registration and the appeal.

[Hubert]

I'm never aware of this two years issue. If I know, I will take my son back to UK for some period in between.

[Hubert]

For appeal, do you mean appeal against the decision and still ask for ILR?
Can I try appeal and registration at the same time? Will they conflict?

I have to thank both of you for following the case till so late. You guys seem to be more professional than a solicitor.

[Obie]

Try the appeal.

You are likely to have a decision in your favour. The best interest is in play, and even if you made the wrong application ECO ought to have grant leave of short duration.

As you child is young , you will be able to get an early hearing date if you request.

The registration can be done simultaneously.