Proof of my Father's ILR at the time of my birth

[brightbud]

Hi Guys,

I am having an absolute nightmare. In short I am born in the UK (1984)and lived here all my life. I applied for my first adult passport mid-march and unfortunately I have had no joy in a successful application.

The passport office require proof that either one of my parent had ILR ( Indefinite Leave to Remain ) in the UK at the time of my birth. The only evidence I had was a photocopy of the visa stamp of my father’s original Indian Passport ( this has been superseded by a British passport as of 1989) All evidence surrounding immigration/previous passports has been handed in as part of my father becoming British (1989). the Indian High Commission have confirmed they destroy old passports so there goes my evidence out of the window..

The UK Passport office require a letter from the home office confirming my father did in fact have ILR at the time of my birth, I have rang them on several occasions and had no response besides the fact that there is no guarantee how long it may take ( not even a promise that they may have a record of this since this is going back to 1978! )

The passport department have also tried contacting the home office without any luck so they have suggested the only way to progress my application is to go through the naturalisation process!!

How can I get evidence that my father did have ILR at the time of my birth, is there a physical address I can visit to gain this information? Anyone have any contacts I can consult as ive ran out of options.. It been over 11 weeks and no luck at all. I have a flight booked for the 28th of May since 12 weeks and it seems unlikely that I will be able to make it and miss out on a once in a life time opportunity for my mates stag do.

Im hoping someone can advise me/ shed some light as to how I can get this evidence.

[Apparition]

Bump - I'm having the same problem. How one earth are we meant to prove our father's ILR if he doesn't have the original passport from the 70s and they destroyed his records?

This is such a scam!

[vinny]

Try applying for your parents' SAR or apply for confirmation of British nationality status.

[Obie]

I agree the Confirmation of British Nationality status mentioned by Vinny is a good solution, as the burden of proof is on a balance of probability, whiles the british passport application is a higher burden of proof.

I wonder why your parents never registered you, or applied for a British passport for you, when you were a minor.

[Apparition]

Viny, Obie

SAR - I did this on my father and the UKBA destroyed his file (WTF?!)

Confirmation of British Nationality Status - I did this on myself and they said they can't determine the date of my father's ILR so I should register to naturalise myself as a British Citizen.

^^^ This is such BS, they haven't given a Yes/No answer on my nationality based on the evidence submitted (father's marriage certificate to a British woman in 1979, my father's marriage to my mum in 1986, my father's naturalisation certificate in January 1992). I was born in 1987.

This actually violates Human Rights, they're depriving me of my nationality and potentially preventing me obtaining nationality from another nation; that nation may ask for proof I'm NOT British, this inconclusive response would prevent me getting that too.

Any advice?

[Obie]

The possibility of Judicial Review, and a declaration by the High Court, that on a balance of probability you are indeed a British Citizen.

[Apparition]

Bump. Can't believe this problem hasn't cropped up with more people.

[Amerhaddad]

Hi guys

I have the same problem here, i need proof of my fathers ilr at the time i was born. 7/3/83. I have held a British passport all my life, my father was naturlized a year after i was born and i have the orginal copy of his certificate. Now i am leaving in egypt and i have a 1 yr old son, when i tried to apply for his passport they asked for my fathers ilr at the time i was born,
His syrian passport since the eary 80's that has the stamp on it is in syria and almost impossible to reach, is there a way to get this evidence also considering that he was naturlized a year after i was born is evidence he must have had ilr for several years to qualify, if he didnt have it then I wouldn't have been granted British citizenship.

[vinny]

There are some Surprised Brits with similar problems.

[Amerhaddad]

Cant the HO send a letter confirming my fathers status, or is all this just a waste of time. If so it means that i have to personaly travel to syria and back to get this evidence, aleppo isnt the safest of places to go right now.

[vinny]

On what date was your father naturalised?
Was he married to a British citizen at the time?

If you already have a British passport and was born in the UK, then haven't they already accepted that you are British otherwise than by descent?

Are they questioning your rights for a British passort?

[Amerhaddad]

My father was naturalised on 19/06/84 along with my mother, my father had ilr for 3 years prior to being naturalised. like i said ive always had a British passport, im not sure now if im considered by descent or otherwise than by descent, all i know is that when i sent all the paperwork to the passport office in Uk to apply for a passport for my son who was born just under a year ago in egypt, they asked for my fathers ilr to complete the application.

[vinny]

You are automatically British otherwise than by descent.

[Amerhaddad]

Thank you vinny for your time and confirmation, i find it really strange that the passport office have trouble seeing this, even when i called to ask, the guy talking to me said obviously he must of had ilr, so anyway i have until 28/10/15 to provide them with this evidence, i have written to the HO asking them if they can confirm my fathers status at the time i was born by either letter or if they can provide documents. Still no reply yet, only other option is personally going to Aleppo Syria and getting it myself, so if you dont hear any updates from me then it must be bad news.
Thanx again vinny
Take care

[vinny]

By refusing your son his automatic claim to British citizenship, are they implicitly questioning your rights to British citizenship? The only illogical reason for refusing your son appears to be that they are claiming that you are not British!

They should note:

Burnett J went on to describe the approach of the court in this way against the background of the facts in that case which involved the Defendant having previously issued a passport to the Claimant which he was simply seeking to renew when, at the renewal stage, the Defendant declined to do so:
"The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional public law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test."

In my judgment, when considering a renewal application, the Defendant ought to exercise her discretion in accordance with the written ministerial statement, which reflects her policy and usual practice, and the cardinal public law principles of rationality, consistency and fairness. The authorities have established that the Defendant must show cogent reasons for refusal:

i) "having issued one passport, the Defendant would have to show substantial, well-founded and cogent reasons for not renewing it", per Edis J. in R (Rahman) v Secretary of State for the Home Department [2015] EWHC 1146 (Admin), at [27].

ii) "The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional public law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test." per Burnett J. in R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin), at [23].

18.

Firstly, it was an error of law to place the burden of proof on the Appellants to establish [KD]'s nationality notwithstanding the prior issue of a British passport to him. Where the relevant authorities have already taken a decision recognising a particular entitlement, cogent reasons are required before a related government department comes to a different conclusion, see for example
(a) Burnett J in Ali [2012] EWHC 3379 (Admin) §23:
"... having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view."
(b) Edis J in Rahman [2015] EWHC 1146 (Admin) §31:
"... for obviously sensible reasons, it requires cogent reasons to justify the refusal to renew a passport on the application of the person to whom the original passport was issued after an investigation."

[Amerhaddad]

Now this is getting more serious, so wat about my fathers naturalisation in 1984, surly the only way to get that is through his ilr, wat if my father didnt have his syrian passport since 1983 that had the stamp on it, wat would or should i do to prove my status

[vinny]

They issued your British passports as evidence of your British citizenship.

They should not have issued your British passports without first satisfying themselves that you are British.
You would not have been British, if neither your father nor mother had ILR when you were born in the UK.

Ask them to to advance cogent reasons that stood up to scrutiny why, on a later application with regards to your son, they are taking a different view.

[Amerhaddad]

Would an SAR help, looks like im running out of options, plus going through my sons application form, it states for achild born outside the uk to parents born on or after 1/1/83, you most provide evidence of grandfathers status in the uk. Its possible that i might not be able to get hold of my fathers ilr, wouldn't an SAR confirm my fathers stauts at that time?

[secret.simon]

A Subject Access Request (SAR) allows you to request a government department for all the data it holds on you (for a charge of £10).

But
The department can only send you the data it has on you. It can not send you the data it has on somebody else (your father). So, unless your father's ILR is recorded on some document that pertains to you, you may probably not get any relevant document in your SAR.

Most departments have data retention policies and destroy records after a certain period of time anyway. I would not think that a 30 year old ILR document would survive this far anyway.

You can try applying for an SAR (it is only £10), but I would not hold out much hope of finding any useful information.

You may also wish to contact your local MP to see if he can intercede with the Home Office on your behalf.

[Amerhaddad]

Ok so i can get my father to do his SAR,
Meanwhile i have been able to locate my fathers passport since 1976 to 1980 it has many leave to enter stamps from 76 to 80, then the other passport is dated 1986 so im missing the 1 he had from 1980 to 1986 that must of had the stamp, also i have his first british passport in 1984, im going to contact my local mp tomrrow and see if i can get more help, also all the leave to enter stamps before his ilr were signed by Gordon kerr secretary of state home office, cant any of this info help.

[FighterBoy]

a declaration by the High Court, that on a balance of probability you are indeed a British Citizen.

How do you go about doing that? Seems better than dealing with the Home Office.

I'm very surprised there hasn't been a massive class-action lawsuit against the Home Office for destroying records - this must affect thousands of migrants and/or their children. Yet the indigenous population have records on file permanently with GRO.

[FighterBoy]

Most departments have data retention policies and destroy records after a certain period of time anyway. I would not think that a 30 year old ILR document would survive this far anyway.

You can try applying for an SAR (it is only £10), but I would not hold out much hope of finding any useful information.

You may also wish to contact your local MP to see if he can intercede with the Home Office on your behalf.

What happens when people's birth/marriage records are missing? In a population of 65 million, plus millions claiming from abroad, this must be a serious issue that has yet to be addressed. What about people born in the UK with no birth certificate; either gone missing or were never registered. They must exist. There seems to be little to no provision for it?

[secret.simon]

I'm very surprised there hasn't been a massive class-action lawsuit against the Home Office for destroying record

To the best of my knowledge, the concept of class action lawsuits is a peculiarly US creature.

It has only recently been introduced to the UK courts in October 2015, but only for consumer contracts for goods, digital content and services. And from the way the Consumer Rights Act 2015 is phrased, it does not apply to government services.

English law is based around the concept of reasonability and the government can argue that it is not reasonable to expect it to have a record of every migrant for ever. Not to mention that it could be attacked as a violation of privacy if the government kept records of everybody for all times and discriminatory if it did that just for migrants. You can't win.

What happens when people's birth/marriage records are missing? In a population of 65 million, plus millions claiming from abroad, this must be a serious issue that has yet to be addressed.

Given that one record is issued to the parents/couple and another is kept by the GRO, the chances of both the records going missing are miniscule.

What about people born in the UK with no birth certificate; either gone missing or were never registered.

It is a legal requirement for a birth or death to be registered within a few weeks of occurring (between 2 to 6 weeks depending on where in the UK you are located). While such cases may still occur, again the chances of them are minuscule enough to be regarded as reasonable.

[FighterBoy]

I don't understand your points Simon - if permanent records are kept for the indigenous population how is it unreasonable to permanently record who settled here?

Also whilst I agree that missing modern day GRO records are very rare, they will still exist, and missing records abroad will definitely occur. And then births unregistered here or abroad.

I'm just curious what happens in these circumstances. There seems to be no procedure and people are left in a precarious position.

[FighterBoy]

... And if anyone can explain how you can apply for a High Court Declaration for British Nationality, I'd be grateful and so would others I imagine