REGISTERING FAMILY FOR SETTLEMENT AFTER BREAK IN RESIDENCE

[femooh]

Hi all. I recently got my ILR after my 5-year post-study stay as an HSMP/ Tier 1 general migrant.
I came in as a student in 2006 and reunited with my family who had been here since 2001 when our first child was born. He is now in secondary school and we have another daughter, five years, in primary school.
Unfortunately, earlier in 2005 my wife left for the Republic of Ireland with our son, to try and secure settlement but unfortunately did not succeed. She came back to the UK in 2006. This eventually created problem as the period stayed outside the UK was more than the required limit of days to be spent outside the United Kingdom and affected the 10 years stay for settlement application consideration.
Since, i have now secured my ILR, could it be possible to apply for my family settlement having now spent about nine years since returning and another daughter is added to the family in UK.
Section 1(3) stated that any child born to a settled citizen of the United Kingdom since 2006 can be registered as a British citizen by the father. Which means my daughter is qualified to be registered.
Is it advisable I apply for her with form MN1?
My son, born in 2001, of an unsettled mother with no immigration status, but has stayed over nine years since returning from the Republic of Ireland; could I be right to also apply for him using section 4G (Guide UKF) or section 3(1) - at the Home Secretary’s discretion using form MN1 too?
Does the fact that we have continuously lived together all these years (9 years) amount to being ‘married’ and considered husband and wife? Could this in any way help with my wife’s settlement application?
Could anyone, please, enlighten me on what steps I should take.
Thank you.
Femooh

[secret.simon]

Does the fact that we have continuously lived together all these years (9 years) amount to being ‘married’ and considered husband and wife?

My son, born in 2001, of an unsettled mother with no immigration status,

What was your wife's immigration status in 2001 when your son was born? We you married to her at the time or subsequently? What is her current immigration status?

Where were your son and daughter born?

Your youngest daughter, born in the UK, can be registered under Section 1(3) using Form MN1.

If your eldest two children were born outside the UK, they can be registered at the discretion of the Home Office. But that typically requires one parent to have citizenship and the other to have ILR. As your family's status is not that, it is unlikely that your eldest two children will be registered.

However, I believe that if they have completed 7 uninterrupted years in the UK, they can apply for ILR in their own right.

So, to summarise, the two eldest children can apply for ILR while the youngest can be registered. Your wife's path will depend on her current status.

[femooh]

Thank you Secret.Simon for your reply.
My wife came on a visitor visa and apparently became an over-stayer since she didn't return before the expiration of her visa. And she has since remained here in Europe.
Yes, we were traditionally married, but does that count here. That's why I brought up the issue of staying together for over 9 years in the UK - since I came in as a student in 2006 and reunited with her.
No, there are presently two children, both born in the UK. The eldest, 13 years old boy (born in 2001) and the five-year old girl, born in 2010. The problem is the break in residency when my wife travelled to the Republic of Ireland in 2005, taking the boy along and came back in 2006 having spent more than 200 days there.
You advised that my 13 year old boy can apply for ILR. Please, what section of the immigration law favour this advice?
Do I need to use an immigration lawyer to put in these applications?
I am really grateful for your attention and appreciate your advice.
Femooh

[secret.simon]

My wife came on a visitor visa and apparently became an over-stayer since she didn't return before the expiration of her visa. And she has since remained here in Europe.

What is her current migration status in the UK? What was her status when she entered the UK from Ireland in 2005? Has she got no leave to remain in the UK at the moment?

Yes, we were traditionally married, but does that count here.

In which country were you "traditionally married"? Were you registered as married in that country? Does your home country recognise "traditional marriage"?
If you can prove (with letters, bills, bank statements, etc) that you have lived together in "a relationship akin to marriage" for a minimum of two years, your wife can apply for some types of leave to remain, but we will need answers to the questions above.

there are presently two children, both born in the UK

Both the children born in the UK can register for citizenship under Section 1(3) of the British Nationality Act 1981, based on your ILR. Ignore the part above about the children getting ILR as that was based on the assumption that they were born abroad.

The right above is an entitlement, which means that the Home Office can not refuse it, so long as you can prove that they were born in the UK (UK birth certificate with you listed as the father) and that you have ILR (your BRP and passport). So, you do not need a solicitor. You may want to use the NCS services of a local council, so that you can keep your passport and BRP with you.

You're welcome and best of luck with your children's applications.

[vinny]

If you are not married to elder child's mother, then elder child is entitled to register, probably under Section 4F(1)(b)(i).

[secret.simon]

@vinny,

Would the elder child not register under Section 1(3), if he is named as the father on the UK birth certificate?

[vinny]

As elder child was born before 1 July 2006, an unmarried father is not recognised as a father for the purposes of Section 1(3).

[Obie]

@vinny,

Would the elder child not register under Section 1(3), if he is named as the father on the UK birth certificate?

Try not to confuse the OP .

Even the OP was aware at the beginning of the thread that his child born in 2002/2003 in the UK cannot rely on 1 (3).
Vinny correctly highlighted the relevant provision as the OP'S elder child appeared to have been born before 1 July 2006, at a time when mother and father were not married.

Therefore op can only rely on the changes that was inserted by the 2014 immigration act.

[femooh]

Thank you very much Vinny, Secret.simon and other contributors for your time and these incisive contributions.
My wife has no immigration status presently as her initial application was turned down in 2012. We were traditionally married in Nigeria and have enough documents to prove we have been staying together for the past nine years in the UK.
We have recently re-applied for consideration and hopefully that the Secretary of State will look into her case with positive consideration after spending more than 14 years in the UK barring her sojourn in Ireland.
We have all lived together since their return from Ireland and birth of our last daughter. I have just one wife and the mother of my two children.
I am clear on the form to use form my five-year old daughter and the section {Form MN1, section1(3)} under which immigration law to quote. My problem is my elder boy, who is now 13 years and who has missed many school trips overseas because of no travel documents. It’s really worrying, since he is suffering for no fault of his own and I can feel his pain. I am so concerned about his frame of mind, especially the way adolescents thinks nowadays. I have always tried to counsel him, but I just hope we can get this problem lifted of our heads.
And my wife, who has unfortunately developed medical conditions due to anxiety and related issues is on medication.
So, what form and immigration section would assist my 13 year old son and if possible too, my wife. Even if it has to be different applications. Please, I want to be careful so as not to continue wasting the limited resource that we have. I am the only person working presently.
Thank you once again.
May God continue to light your ways.
Femooh

[secret.simon]

I will step away from this conversation in case I inadvertently confuse matters and I am sure vinny and Obie will provide you with better and more detailed advice.

I believe that your family has sufficient grounds for legal settlement in the UK but that it will take a while and a lot of form filling. I wish you the best of luck in your applications.

[femooh]

Thank you Secret.simon.

[vinny]

I believe that the elder child should use form UKF.

[Obie]

I believe that the elder child should use form UKF.

Vinny I stand to be corrected, but is it not the case that UKF is applicable only to those child who would have automatically acquired citizenship under section 1 (1) or 2 (1) had their father been married to their mother at the time of their birth.

It seems to me , that MN1 continues to apply to those section 4 (F) category.

[vinny]

Oops! You are quite right. Thanks for the correction.

3. Application Forms
An application for a child under the age of 18 (under section 4F) should be made on the minors’ application form MN1.
An application under sections 4G-I should be made on form UKF.

[Obie]

Thanks Vinny for the very helpful link.

The government keeps publishing these new applications and promulgating these legislative provision. No surprises that one gets a bit unsure at times .

Thanks for the endorsement and links as I was not 100% confident myself.

[femooh]

Thank you all. Am I supposed to believe that form MN1 will be suitable for the two children. My elder son aged 13 but with a break in residence in 2005/ 2006 and the junior sister (born 2010)?
Thank you.

[vinny]

Yes. According to the casworkers' instructions linked to above, we believe that the form MN1 is suitable for the elder child as well.

Breaks in residency is irrelevant under Section 4F(1)(b)(i) when child is under 10. It's relevant, if registering under Section 1(4).

However, with the new Good Character requirements for people over 10 years old, if he had overstayed, then he may be refused.

[Obie]

Yes. According to the casworkers' instructions linked to above, we believe that the form MN1 is suitable for the elder child as well.

Breaks in residency is irrelevant under Section 4F(1)(b)(i) when child is under 10. It's relevant, if registering under Section 1(4).

However, with the new Good Character requirements for people over 10 years old, if he had overstayed, then he may be refused.

Funny how these policy are designed. It follows that a child who applies under Section 1(4) could very well face refusal if he or she has resided in the UK without leave, as he/she is likely to make such application a day after the 10th Birthday.

For Example OP's child could qualify under Section 1(4), as the Secretary of State has a discretion to ignore the time he spent in Ireland with the mother under 1(7). However as you said, he could face refusal under character test, and that sounds really scary.

It will make that provision Nugatory if a child is penalised for actions for which they were not responsible.

[femooh]

Uhh... Am now at a cross-road. What step should I take and form should I use. It bothers me to think that a child that was taken out and back to the UK while still a 5/6-year old could be penalised. He was not responsible for that action and I also feel that "provision" would be nugatory if a child is penalised for actions for which they were not responsible.
But who am I to judge.
Please, do we have immigration lawyer(s) within this forum that can takes this up for my family.
I thank you all for your wonderful contributions and appreciate the time you sacrificed but I still your support/ advice for this final huddle. Bless you.

[vinny]

Has the elder boy overstayed? If so, then for how long?

[femooh]

Could a child born and brought up here in the UK overstay?
Although he was taken to the Republic of Ireland for about a year, he returned to the UK in 2006 and he has been here since.

[vinny]

Was he granted leave to enter when he returned to the UK from Ireland?

If he was granted leave and it had expired without him making an in-time application for leave to remain, then he has overstayed.

Note:

Common Travel Area
15. The United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively form a common travel area. A person who has been examined for the purpose of immigration control at the point at which he entered the area does not normally require leave to enter any other part of it. However certain persons subject to the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) who enter the United Kingdom through the Republic of Ireland do require leave to enter. This includes:
(i) those who merely passed through the Republic of Ireland;
(ii) persons requiring visas;
(iii) persons who entered the Republic of Ireland unlawfully;
(iv) persons who are subject to directions given by the Secretary of State for their
exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good;

If he wasn't granted leave, then see also Chapter 2: Entry without leave.

[physicskate]

It bothers me to think that a child that was taken out and back to the UK while still a 5/6-year old could be penalised. He was not responsible for that action and I also feel that "provision" would be nugatory if a child is penalised for actions for which they were not responsible.
But who am I to judge.
Please, do we have immigration lawyer(s) within this forum that can takes this up for my family.
I thank you all for your wonderful contributions and appreciate the time you sacrificed but I still your support/ advice for this final huddle. Bless you.

But the other side of the coin is 'why should he benefit from your illegal actions?' You were 'responsible' for his actions and you chose to make him break the law...

So there are two sides to every coin!

[femooh]

Yes, but I was not directly responsible for the that journey. I came to the UK in 2006.
But as a father I feel responsible for all actions and inaction.
Thank you.

[Obie]

I am sure you cannot be blamed .

How long did they take in the Irish Republic ?

Did the children go to school there ?