born in UK 3year dependant visa renewal refused-OVERSTAYER

[dollypee]

My husband and I were previously on separate tier 2 visa. after I had my daughter here in the UK, I did a dependant visa for her under me when se was about 9months and we travelled (visa expiry date on BRP was 17th jan 2017). I switched my visa to depend on my husband in April last year but we didn't do anything to my daughter's visa since we didn't have any plans to travel. We decided to travel this year so we applied to switch her to depend on my husband on the 8th of Feb. I actually thought there wont be any issues considering she was born here but I got a refusal letter today saying she has overstayed for more than 14days. Not sure of what step I need to take now. Both myself and are dad have valid visas and are working and she is just 3years. Does anyone know what I can do?

[CR001]

Being born in the UK doesn't give the child any rights as she is not British.

When do either of you qualify for ILR?

You could travel out of the UK and apply from home country.

[dollypee]

my husband qualifies for ILR next year November. If we decide to leave things as they are and not take her out of the country till my husband gets his ILR, will she qualify as british citizen? In effect, I am asking if we aren't breaking any law by leaving her here

[CR001]

She will be entitled to register as British once either parent is granted ILR. Technically not breaking any law but she is on HO's radar now.

[dollypee]

Hmm.. thanks. I hope home office will send back her documents although they have said the BRP card has been destroyed. If I choose to go back to home country to reapply for her, what are the chances? will overstayer be considered? Lastly, are there any options to explore here in the UK e.g Appeal. If I knew it would be an issue, we would have applied earlier really however I understand ignorance is no excuse

[CR001]

There is no appeal right for PBS routes. Have you been given the option for Administrative Review?

[dollypee]

yes they gave option for administrative review. I went to read about it and what I found seem to be more related to case working error and this isn't a case working error which is why I am unsure if that will come out with anything positive.

[CR001]

Worth a try with a good explanatory cover letter (differing dates on BRPs etc). You only have 14 days to submit AR.

[dollypee]

thank you. will give that a try. my intention is to say I didn't know it would be an issue (that sounds lame maybe but its the reason) and also unaware that 28days has now been changed to 14days

[vinny]

She failed 319H(m).

However, as she was born in the UK, she may succeed under rules A280(b), 304-309.

It's not the applicant's fault that there are no explicit application paths under these existing UK-born child rules. But caseworkers should have been aware of these rules. The lack of explicit application paths for eligible UK-born children under these rules or this refusal may be contrary to Section 55 and unreasonable.

Mention these points in the AR.

[dollypee]

Thank you so much. Really glad you could point me to some documents to support the AR. I have read 304-309 and there is no mention that a child born in the UK will be considered overstayer. The only ground for refusal I saw there is if away for 2years. I will mention this in the AR. Thanks. Much appreciated

[vinny]

Indeed, there is no requirement for child to have extant leave under A280(b), 304-309.

[dollypee]

Hi, not to rehash this but while preparing to put together my cover letter for the Administrative review, someone drew my attention to FLR guidance that was first published last year December saying that's what we should apply under for our daughter. I have had a quick read through it but I am not sure if its applicable. Don't understand much about FLR route as we have always been under PBS

[CR001]

FLR is not appropriate as you are a PBS visa holder.

[dollypee]

ok Thank you. I actually saw that in the exception too. We have drafted a cover letter to go with the Administrative review. What we intend to send is below:
The refusal of our 3 year old daughter who was born in the UK and has lived here since is an outcome we weren't expecting. The reason is because there is no requirement for child to have extant leave under Immigration Rules part 8: family members- A280(b), 304-309 (https://www.gov.uk/guidance/immigration ... t8children).
Looking at 304-309 there is nothing explicitly indicating a child born here with parents having valid visa can be considered as over stayer. The ground for Refusal for a child born in the UK as stated in 309 is if Immigration officer is not satisfied that each requirement of paragraph 305 is met. We have looked at every requirement in paragraph 305(ii)-(iv) and all requirements are met. Nothing explicitly saying a child born here needs to always renew visa or can be considered an over stayer even when parents have valid visas.
The first time we applied for her was because we needed to go on a holiday and the reason we are applying now is because we are planning to go on holiday in summer. Our understanding is that a child born here will need this visa to be able to re-enter into the country if she travels out of the country. We considered the expiry date (Jan 17th 2017) on her BRP as expiring date to come back into the country should she travel out for any reason and also to ensure her leave is not beyond what her parents have been granted.
The lack of application paths for eligible UK-born children under these rules or this refusal may be contrary to Section 55 and unreasonable.

[vinny]

Unfortunately, the child is an overstayer because the leave has expired. The refusal was correct under 319H(m).

However, overstaying doesn't matter for a UK born child under the rules A280(b), 304-309.

As previously stated, there appears to be no explicit application path/form for applicants under the rules A280(b), 304-309.

Perhaps the appropriate form may be FLR(IR). But the UK born child category isn't even mentioned there.

The PBS dependant path/form may include applications from UK born children. But it probably hindered caseworkers to also consider the appropriate rules for UK born children. The refusal was not in the best interests (Section 55) of the child and unreasonable because the child satisfied the rules A280(b), 306.

[dollypee]

Thank you. Their rules are just confusing. I will go ahead and re-word the letter raise the Administrative review. If the outcome from that is not favourable we may then consider FLR(IR). I'm much obliged for all of your suggestions.

[vinny]

Their rules are just confusing.

Yes.

[vinny]

Include these?

12.5. Applications for leave to enter or remain as a child who is born in the UK but is not a British Citizen, or for indefinite leave to enter or remain as an adopted child or as a child being admitted for the purpose of adoption, remain subject to paragraphs 304 to 313 of Part 8 of the Immigration Rules, regardless of the date of application.
...
14. Contact for Further Information
This guidance is owned by the Family Policy Team.
Any queries should be directed to FamilyOpsPolicy@homeoffice.gsi.gov.uk

For the purposes of these Rules, a case working error is:
...
(d) Where the original decision maker otherwise applied the Immigration Rules incorrectly; or
(e) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.

[vinny]

More thoughts. Should add A277 in front of A280(b) in above posts.

[dollypee]

Thanks Vinny. Just seeing your last 2 messages and I have read the guide. It would have been good to quote those in the AR review request but I submitted the Administrative review on Friday. Below was what I eventually submitted. Don't know if that's enough or if I need to find a way to provide this further information

"The refusal of our 3 year old daughter who was born in the UK and has lived here since is an outcome we weren't expecting. The reason is because there is no requirement for child to have extant leave under Immigration Rules part 8: family members- A280(b), 304-309 (https://www.gov.uk/guidance/immigration ... t8children).
Looking at 304-309 there is nothing explicitly indicating a child born here with parents having valid visa can be considered as over stayer. The ground for Refusal for a child born in the UK as stated in 309 is if Immigration officer is not satisfied that each requirement of paragraph 305 is met. We have looked at every requirement in paragraph 305(ii)-(iv) and all requirements are met. Nothing to imply a child born here needs to always renew visa or can be considered an over stayer even when parents have valid visas.
The first time we applied for her was because we needed to go on a holiday and the reason we are applying now is because we are planning to go on holiday in summer. Our understanding is that a child born here will need this visa to be able to re-enter into the country if she travels out of the country. We considered the expiry date (Jan 17th 2017) on her BRP as expiring date to come back into the country should she travel out for any reason and also to ensure her leave is not beyond what her parents have been granted.
We understand perhaps she was refused under 319H(m) however, overstaying doesn’t matter for UK born child under the rules A280(b), 304-309.
The lack of explicit application path/form for eligible UK-born children under these rules or this refusal may be contrary to Section 55 and unreasonable because our child satisfied the rules in A280(b), 304-309".

[vinny]

Good luck!

If worse comes to worst, your child will be entitled to register as a British citizen directly after a parent is granted ILR. Another reason why this refusal is so senseless.

[dollypee]

Thanks Vinny. You have been of tremendous help and I am very appreciative of that. I will keep you posted of the outcome. I am hoping it wont take up to 28days .

[vinny]

We considered the expiry date (Jan 17th 2017) on her BRP

Be careful too.

If she departs the UK from Monday, 17 April 2017, without clearing this up, then she may also face a one year re-entry ban!

[vinny]

12.5. Applications for leave to enter or remain as a child who is born in the UK but is not a British Citizen, or for indefinite leave to enter or remain as an adopted child or as a child being admitted for the purpose of adoption, remain subject to paragraphs 304 to 313 of Part 8 of the Immigration Rules, regardless of the date of application.
...
14. Contact for Further Information
This guidance is owned by the Family Policy Team.
Any queries should be directed to FamilyOpsPolicy@homeoffice.gsi.gov.uk

Also suggest that you email them to clarify daughter's eligibility.