Born-abroad child w/o ILR - MN1 3(1) refused

[satish333]

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

[CR001]

Could you please stop bombarding the forum with repetitive posts and be patient for a reply to this post.

Looking back at your extensive questioning on this subject in all your posts, you were advised to seek ILR for your children as they were born abroad before you were British or even had ILR.

http://www.immigrationboards.com/member ... 333/posts/

If I understand correctly, your children are aged +/- 14 and 10 and been resident in the UK for 2 years or so. They will be expected to have ILR. You were advised of this in March 2014 by Vinny.

It might have been a different outcome of the MN1 applications if the children were say 2 years or 3 years old and been in country for the time you say.

[Jambo]

It is difficult to give you advice given that you ignored the advice we gave you last time about ILR.

You took a risk which didn't pay out. Your options are:

* Reconsideration (£80), if that fails,
* Sort out their ILR (more complex now that their visa expired) and re-apply.

[zeusmagnanimous]

I was reading your post yesterday and feeling bad for you thinking if only someone had advised you to apply for ILR before hand ..... but it turns out you were advised to apply for ILR and you decided to ignore it. Looking at your previous post it seems you were also told that this was a big risk.
I am no expert on the subject but the references you have provided say that ILR will normally be required and that with all these conditions they will "consider" whether registration is appropriate - well they have considered. I don understand why you would take such an unnecessary risk.

I think you should seek professional help without further delay. Also do listen to the advice given by members like Vinny, Jambo, CR001 and Amber. I have been using this forum for years and have always found their advice very accurate and helpful and I believe hundreds of other members will tell you the same.

[sagareva]

Not sure why you have all ganged up on OP
I think the OP is right, it is possible to apply directly in his case, and it has been done before, although alas it is not guaranteed to succeed -- but sometimes it does and I know cases where it has.
Getting ILR for children is a BC is a pointless and expensive step and HO should be expected to recognise this more.
He was advised to apply for ILR based on what HO normally wants you to do, but what HO wants you to do is not always right.
If one steps back and looks at the policy and legal context, this becomes quite clear.
I'd challenge this.

what is the children's citizenship?

[CR001]

Not sure why you have all ganged up on OP
I think the OP is right, it is possible to apply directly in his case, and it has been done before, although alas it is not guaranteed to succeed -- but sometimes it does and I know cases where it has.
Getting ILR for children is a BC is a pointless and expensive step and HO should be expected to recognise this more.
He was advised to apply for ILR based on what HO normally wants you to do, but what HO wants you to do is not always right.
If one steps back and looks at the policy and legal context, this becomes quite clear.
I'd challenge this.

what is the children's citizenship?

His children are in their early teens and are not entitled to register as they were NOT born in the UK so are not BC at all. The rules are quiet clear about the process. The few that do succeed are very lucky and you will probably find that the successful ones are mostly for very small children (age 2 to 5'ish).

OPs children are Indian Citizens.

[sagareva]

Not sure why you have all ganged up on OP
I think the OP is right, it is possible to apply directly in his case, and it has been done before, although alas it is not guaranteed to succeed -- but sometimes it does and I know cases where it has.
Getting ILR for children is a BC is a pointless and expensive step and HO should be expected to recognise this more.
He was advised to apply for ILR based on what HO normally wants you to do, but what HO wants you to do is not always right.
If one steps back and looks at the policy and legal context, this becomes quite clear.
I'd challenge this.

what is the children's citizenship?

His children are in their early teens and are not entitled to register as they were NOT born in the UK so are not BC at all. The rules are quiet clear about the process. The few that do succeed are very lucky and you will probably find that the successful ones are mostly for very small children (age 2 to 5'ish).

OPs children are Indian Citizens.

i know they are not entitled

but guidelines for registration at discretion allow for this possibility

i'd put this not as much on children's ages as on perhaps the length of their UK residency, in whatever status

if their entire family is now BC/settled and they satisfy all conditions and have 2+ years residency which it appears they may have, ILR step is pointless bureacracy and waste of money

of course HO wants you to do it, the more pointless and expensive something is, the more enthusiastic HO would be about wanting for you to do it


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.

[CR001]

but guidelines for registration at discretion allow for this possibility

Yes, the key words here are 'discretion' and 'possibility'..IMO very risky considering the cost and OP was advised of this accordingly.

i'd put this not as much on children's ages as on perhaps the length of their UK residency, in whatever status

2 years, so not a large portion of their lives on settlement visas.

OP had been advised earlier this year, on many occasions, of what would be required for a 'trouble free' MN1 application, this advice was ignored. OP now can request a reconsideration (at a cost X 2) but if unsuccessful, the dilemma is that the children's settlement visas have already expired.

[Obie]

The refusal of the OP's application is wrong, and he should challenge it.

It is clear the future of the child and parents lies in the UK.

The child will clearly be entitled to Settled status.

The father is a british, and it is clear the future lies in the UK.

The only reason for refusing , is to get the parent to make an application for settlement, which in my view is unnecessary.

[vinny]

Asking for a reconsideration is possible. However, challenging it by means of JR may be more expensive than applying for SET(F) and MN1?

[ouflak1]

The refusal of the OP's application is wrong,

Technically, it's not wrong. Anything that relies on discretion, especially in this case where the discretion would have to be exceptional, cannot be wrong.

It is clear the future of the child and parents lies in the UK. ... The father is a British, and it is clear the future lies in the UK.

Maybe and I tend to agree. But these are older children who only have been in the UK 2+ years. Parents do send their children back to their home countries for various reasons, especially educational ones. And in a few years, when the oldest reaches the age of majority, well that's really up to him/her. The future may not be all that clear.

The child will clearly be entitled to Settled status.

I think you meant to say that they would have been entitled to Settled status. Now that their visas have expired, they are overstayers. *sigh* This complicates matters rather a bit.

The only reason for refusing , is to get the parent to make an application for settlement, which in my view is unnecessary.

No doubt the Home Office has acquired an historical degree of avarice. But the OP left the door wide open in this case. You can hardly blame the The Home Office for walking right on through. Now the costs will not only involve extra monies paid to the government, but possibly to lawyers as well to handle advice, appeals, and maybe even JR's. What a potential mess.

I think the best way forward is probably now to go ahead and appeal this (ask for reconsideration). If that fails, go for their ILR and be ready to appeal that. In arguing that appeal, I believe that Obie's points will be winning ones, if not at the appeal level, then at the JR level. Just unfortunate it likely has to take so long.

Hope it all goes as smoothly as possible.

[Obie]

Well a discretion in law does not mean a decision maker can do anything he or she feels with out any legal constraint.

The exercise of a discretion can be wrong, otherwise there will be no need for section 86(3)(b) of the Nationality Immigration and Asylum act 2002.

If a decision maker fail to give effect to their guidance, fail to take account of relevant factors, and give undue weight to other factor, fail to consider the best interest of a Child, then the discretion will be wrong. The discretion is also subject to Public law Wednesbury unreasonableness. If the decision maker exercise the discretion in a way and manner in which no reasonable Secretary of State, focusing his or her mind on the issue will, then the discretion is clearly unlawful.

In this case, the decision is not compliant with their policy, nevermind the other issue.

The Secretary of State has said that in Circumstance where one parent of the minor is a British, then the requirement of the child to have a settled status will be waived.

I guess the children will be at school, mum is settled, father is British, therefore it is difficult to say that the exercise of the discretion in this case, is anything but unlawful.

[ouflak1]

Well a discretion in law does not mean a decision maker can do anything he or she feels with out any legal constraint.

Ofcourse not. But....

If a decision maker ... fail(s) to take account of relevant factors, and give(s) undue weight to other factor(s), fail(s) to consider the best interest of a child,... which no reasonable Secretary of State, focusing his or her mind on the issue (would also do)...

And that's the crux of the matter isn't it? If you yourself are the case worker, maybe you give some 'undue' weight to some particular factors. Maybe I would give some undue weight to other factors. Maybe every other poster on this thread would consider something different, each consideration unique to that person. And Secretaries of States come and go, each one with their own prerogatives and political interests, and working in different climates.

In this case, the decision is not compliant with their policy,

The current policy would seem to be to keep everybody out they can, and kick everybody else out who they can for any reason they can find (or you give them). This is not a climate where one can simply hope to gracefully go against written legal guidance as well as advice from lots of experienced people, and have faith that some anonymous case worker will just see things the way you want them to. Not unless you like the fun of drawn out appeals and judicial reviews.

The Secretary of State has said that in circumstance where one parent of the minor is a British, then the requirement of the child to have a settled status will be waived.

Sure within reason. But the spirit of that was very young children who have lived most of their precious little cherub lives in the UK anyway, and obviously weren't going anywhere for a long long time. Older children, teenagers, who had only been in the UK for a couple of years, wasn't really what that Secretary of State had in mind. Even so, there is discretion here. The case worker could have gone against the written (and fairly established) legal guidance and went ahead and granted the OP's children citizenship. I doubt the Secretary of State would have squawked much, even if that wasn't what they intended, and although that would seem to be against where the UK government wants to go with immigration at the moment.

I guess the children will be at school, mum is settled, father is British, therefore it is difficult to say that the exercise of the discretion in this case, is anything but unlawful.

Written established legal guidance is on the side of the case worker. However it doesn't matter if it is 'unlawful' as you see it, or the expected result as most of the rest of us seem to see it. We all know where this is headed. At some point, there is going to be an appeal of some kind, either of the MN1 application refusal or a subsequent ILR application refusal. Your points will be thrown in the face of some adjudicator somewhere at some time. And if that appeal doesn't win, then a JR almost certainly will. It's hard to see a reasonable scenario where things don't play out just like that. But it all could have been avoided.