born in UK 3year dependant visa renewal refused-OVERSTAYER

[srsw]

Do you mind if i ask which (home) country you are planning to visit? Just trying to understand if you can get any support from your embassy as well as this is quite sensitive issue involving a young child.

[dollypee]

@Vinny, I will send a mail to the familyOps email address enquiring about the eligibility. thank you

@srsw, we are planning to visit Canada but home country is Nigeria

[vinny]

@srsw, we are planning to visit Canada but home country is Nigeria

If she has to apply for a UK dependant entry clearance, then she should apply from Nigeria.

[srsw]

As Vinny suggested, you might want to wait until you get the response from UKVI, rather than inviting re-entry issues by visiting Canada.

[dollypee]

@srsw, there is even no chance of going to Canada until this is resolved as her documents are still with home office. so she has nothing to travel with. I heard what they do is they bring your docs to you at the airport when you are ready to leave the country

[srsw]

I heard what they do is they bring your docs to you at the airport when you are ready to leave the country

[dollypee]

Well the Administrative review came back unsuccessful saying: you must leave the UK now, or you will be liable to be detained and removed. There is also the ENFORCEMENT NOTICE with details about liability or removal and consequences of illegally staying in the UK.
I wonder if indeed they will take action to remove a 3year old and I am a bit confused as to next step to take on this one. We are PBS migrants and I don't know if there is another category we can apply under for her or just wait till we apply for indefinite leave to remain so she can then apply for British Passport then. The concern with that is wont the overstaying issue not pose a challenge when we apply for British Passport for her

[vinny]

Did the AR explain why they did not consider the rules A277, A280(b), 304-309 and Section 55?

[dollypee]

They said:
she does not satisfy the requirements of Paragraphs 304-309 as they do explicitly state that a child, born in the UK to parents who are not British Citizens are required to adhere to the Immigration rules and need to have valid leave to remain in line with their parents.
They further said that :"Whilst it is acknowledged that you do satisfy Paragraph 305(ii) to (iv) these are requirements that are met by a child who seeks leave to enter or remain in the UK in line with their parents and not intermittently in order to leave and enter the UK for the purposes of a holiday. The facts that your parents hold valid leave to Remain does not confer a grant of leave on you and you are required to always seek leave to remain in line with your parents when your visa expires".

They also said:
"With regards to your statement that paragraphs 304-309 do not mention overstaying- this is because they are general paragraphs explaining the need for a child to be granted leave to enter or remain in the UK> however you have to meet the requirements of the immigration rules relevant to the category that you are applying for. In your case this is paragraph 319H of part 8 of the immigration rules as your father is a PBS Migrant-------------------------


They said as she is liable to enforced removal, her passport has been retained

According to them they gave consideration to section 55 and in the particular circumstances of her case, it has been concluded that the need to maintain the integrity of immigration laws outweighs the possible effect on her and her parents and that might result from her and her parents having to re-establish family life outside the United Kingdom. further mentioned that there is no significant obstacles to her integration to home country as parents were born there and lived there before coming to the UK

[vinny]

They said:
she does not satisfy the requirements of Paragraphs 304-309 as they do explicitly state that a child, born in the UK to parents who are not British Citizens are required to adhere to the Immigration rules and need to have valid leave to remain in line with their parents.
They further said that :"Whilst it is acknowledged that you do satisfy Paragraph 305(ii) to (iv) these are requirements that are met by a child who seeks leave to enter or remain in the UK in line with their parents and not intermittently in order to leave and enter the UK for the purposes of a holiday. The facts that your parents hold valid leave to Remain does not confer a grant of leave on you and you are required to always seek leave to remain in line with your parents when your visa expires".

They are adding extra conditions to these rules, contrary to:

...
It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

They also said:
"With regards to your statement that paragraphs 304-309 do not mention overstaying- this is because they are general paragraphs explaining the need for a child to be granted leave to enter or remain in the UK> however you have to meet the requirements of the immigration rules relevant to the category that you are applying for. In your case this is paragraph 319H of part 8 of the immigration rules as your father is a PBS Migrant-------------------------

There may be multiple rules that applies. A277, A280(b), 304-309 are an alternative for UK born children.

They said as she is liable to enforced removal, her passport has been retained

According to them they gave consideration to section 55 and in the particular circumstances of her case, it has been concluded that the need to maintain the integrity of immigration laws outweighs the possible effect on her and her parents and that might result from her and her parents having to re-establish family life outside the United Kingdom. further mentioned that there is no significant obstacles to her integration to home country as parents were born there and lived there before coming to the UK

I think the following quote is most apt for this refusal:

16. This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question....

[dollypee]

In the letter they did say: if you have further reasons for wanting to stay in the UK that were not part of your recent application, you must state them. This requirement is being given under section 120 of the Nationality, Immigration and Asylum Act 2002.

My question is: Is there any way she can possibly apply under another category or what does this statement imply?

Then there is also:

WHAT YOU MUST DO NOW: You must now tell us about any reasons or grounds you have for wishing to remain in the UK................... where you have something new to raise, you should to so straight away or at the latest 14days of receipt of this notice. where you do have a reason or grounds for wishing to stay in the UK you should submit an application using relevant form

WHAT YOU MUST DO IN THE FUTURE: In the future, if you fail to depart from the UK and your circumstances change so that you have new reasons or grounds for wishing to remain in the UK, you must tell us about them by making an application to remain in UK, as soon as reasonably practicable.

MY UNDERSTANDING: the last statement sounds like she can possibly remain here until she can make another valid application. My fear is just on how harsh the Enforcement notice is. I don't want us living in fear of her been removed, looking over our shoulders and I suppose its riskier going back home to apply for her for fear of refusal and also the 30/90days overstaying rule

[hitsis]

If I were you I will seek advice from experienced immigration lawyers.

[dollypee]

Yes I intend to do that just thought I would also ask here as I raised it here initially

[Djsuccess]

You can also seek help from your MP.

[vinny]

See also No place to go: the undocumented children facing deportation from the UK > Just for Kids

The concern with that is wont the overstaying issue not pose a challenge when we apply for British Passport for her

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]

thank you. We have gone to see immigration adviser to seek advise on what we can do

[dollypee]

very adviser we have contacted about this have suggested either doing nothing and waiting to apply for british citizenship for her after one of us parents get ILR or reapplying again for her as PBS dependant but asking for it to be and exceptional case and handled with discretion. There isn't any guarantee with this and I am not sure if leaving things as they are will impact our (Parents) getting ILR when the time comes.

My Question:
1: Does anyone know of any main applicant that was refused ILR because of over-staying child?
2: Does anyone here know of any situation like ours where child is considered overstayer but still granted british citizenship when parent is settled?

[vinny]

How did the advisor answer these questions?

I cannot see any provisions to refuse under 245HF nor 319E because of child's overstay.

After they grant a parent ILR, there is no discretion to refuse a UK born child's entitlement to register as a British citizen, when child is under 10.

[dollypee]

Hi Vinny,
The adviser said: " your daughter's status will not affect your status because they will be looking at you personally and what you have done. The home office do not refuse based on another person or family member's immigration status.
Furthermore, your daughter's citizenship will be based on yours and your wife's position in terms of your status in the UK. her current leave is unlikely to affect her application for citizenship.

At this point, it is now obvious to us based on current rules that if we leave things as they are, it shouldn't really pose a challenge when we qualify for ILR but we would like to also see if there is a way her status can be changed as we really don't want to leave her as an overstayer for that long if possible. We found the route : FLR(FP) and even though we are PBS migrant, we want to apply under the:
"• Leave outside the Rules on the basis of family or private life"
https://www.gov.uk/government/uploads/s ... -04-17.pdf
We want to try that as last resort and if it again comes back unsuccessful then we will leave things as they are.
Thanks alot Vinny for your time and effort. Much appreciated

[vinny]

@Vinny, I will send a mail to the familyOps email address enquiring about the eligibility. thank you

Have they replied?

[dollypee]

Hi Vinny,

No they didn't reply. However, there was an automated response saying they are a small policy team and will generally only answer internal Home Office enquiries about complex family policy. Also said they are not able to answer all external customers enquiries.
Dint receive any further comms from them after that

[vinny]

They also said:
"With regards to your statement that paragraphs 304-309 do not mention overstaying- this is because they are general paragraphs explaining the need for a child to be granted leave to enter or remain in the UK> however you have to meet the requirements of the immigration rules relevant to the category that you are applying for. In your case this is paragraph 319H of part 8 of the immigration rules as your father is a PBS Migrant-------------------------

They upheld the refusal because the child applied under 319H.

Perhaps try FLR(IR), explicitly mentioning child is applying under A277, A280(b), 304-309?

[dollypee]

Another adviser we saw was saying we apply again as PBS dependant but asking for discretion and exceptional basis. I am not very optimistic about that as she still doesn't fulfil 319H. I don't know if Home office would grant a refused visa under the same application in an Overstayer situation.
We are torn between FLR route and applying again under PBS depeandant.

Vinny,
You suggested FLR(IR) but we cannot use that form because of categories(copied for guidance note)below
1.
Dependant joiners who are applying separately from the main applicant – dependants of a person who has limited leave to enter or remain in the UK,
not including dependants of a person with leave under the points based system or dependants of a person in the UK with leave on the basis of
family or private life.

2.
Any other application for leave to remain that is within the Immigration Rules but is not covered by another form.

[vinny]

Any other application for leave to remain that is within the Immigration Rules but is not covered by another form.

As far as I can see, A277, A280(b), 304-309 is not covered by another form.

[irfanzafar]

Please keep us update with any progress. Good luck