HELP! UKVI refused our 7 year old son even if my wife is British!

[vinz420]

After living in the Philippines for 7 years (had a work project to set up a satellite branch of my previous UK employer), my new UK employer requested me to move back to the UK so we can expand and I will manage people etc etc. My wife and two kids are all British anyway and I have an ILR (Indefinite Leave to Remain) status, 4 out of 5 of us were fine to move back to the UK whenever, other than my 7 year old son who was born in the Philippines so he didn't get a British citizenship (due to my wife acquiring British nationality due to father but was born in the Philippines). We therefore applied him for a 'Child dependent of a settled person in the UK' back in March 2017. Me and my other two kids moved here in the UK last June 2017 to start looking for accommodation and look for schools for all 3 of them before the school year started (September 2017). After almost 8 months of waiting, zero answers on the status of the application and £160 worth of phone calls to the UKVI premium number (since application was made outside the UK, they don't have a free phone number), we finally received his decision last 5th November, refusing him due to the following reasons:

- "You have not provided any evidence which would show that you face any particular difficulties or hardship where you live at present. Therefore, I am not satisified that you have any exceptional circumstances which make your exclusion from the UK undesirable."
My son is not seeking asylum, we want him to join us here in the UK. Why does the UKVI think that an individual has to be in a horrible position to move to the UK if he purely wants to join his family? Also, do they realise he is 7 years of age?! Of course he is in difficult position as he is stuck there away from his family and the only person he knows there is my wife, again, who is British, but is also only stuck there because we've been waiting for a decision!

- "You have not provided evidence which shows that there will be 'adequate' maintenance for yourself, your partner/sponsor and any dependants without recourse to public funds."
They UKVI has made a calculation of the definition of 'adequate maintenance' per week based from 2 x over 18s = £114.85 and 3 x dependents = £200.70 which equates to £315.55 per week; and they said that the sponsor needs to have at least 1 year worth of savings (52 weeks) so £315.55 = £16,408.60 (and I only had over £5k of savings at the time of application). I understand that my son, the applicant, is not allowed recourse to public funds, but question is, why are they saying that my wife and two other kids considered in the equation? Since the sponsor, my wife, is British, the only calculation they should compute is £66.90 (£200.7/3 kids) per week x 52 = £3,478.80! Also, as part of the application, I supplied them an 'invitation letter' from my employer, showing that I am working full time and currently earning £26k a month + commission. We also stated that the sponsor, my wife, will be working full time (since kids will be in school anyway) upon arrival to the UK. In short, we will both be contributing to tax etc but she obviously can't do that because she is stuck in Manila (Philippines) with our 7 year old son!

- "I have considered your rights under Article 8 of the ECHR...." "I note that no satisfactory reason has been put forward as to why the sponsor in the UK is unable to travel to the Philippines with you."
Did they just suggest a British person to move out of their own country?! My documents clearly state that the sponsor, my British wife, wants to move back to the UK with the whole family (enumerated the family members too) and also clearly indicated that her and our other two kids are all British so have the right to move back to the UK whenever they want to. Reading about Article 8 of the ECHR, it states that every individual, regardless of race, religion, gender, etc, has the right to be with their family, unless it will break the law by doing so. This also states that the government is not allowed to interfere with an individual who wants to join their family but refusing him entry to the UK splits our family apart obviously!

We have been given the right to appeal which is good and bad - good because it allows us to tell them that they are incompetent and did not look at our case properly and two immigration lawyers I've spoken to said we have a very good case and will likely pass the appeal but bad because after speaking with the UK tribunal, they said appeals may take around 9-12 months! This is unacceptable that we have to pay the price for the UKVI's incompetence and my two kids here haven't seen their mum for almost 6 months now! My wife missed my daughter's teenage birthday (13th), it's the first time we also missed my wife and my son's birthday (he turned 8 last August), all because it took them so long to make this decision and a very bad one too!

I need urgent help as to how I can reunite my family soon because our finances are struggling due to the fact that my wife didn't look for a job in the Philippines since the UKVI states on their website that 100% (yes, it says 100%) of their settlement applications are given a decision within 60 working days, so the due date for that was 5th July 2017! Also being British and being a full-time wife for the last 7 years, she would struggle to find a job that would pay over £300 a month unless it's a full-time job, which she also couldn't do since she is looking after our dear 8 year old son! PLEASE HELP!

Please see attached refusal letter and also evidence supporting that sponsor is British, and application was done correctly too:

Refusal Letter
P1
P2
P3
P4

Sebastian's application: P1
Application proving sponsor is British and currently living with him since he is a minor:

[secret.simon]

My wife and two kids are all British anyway

he didn't get a British citizenship (due to my wife acquiring British nationality due to father but was born in the Philippines).

Was your wife's father born in the UK? Has your wife lived for at least three continuous years in the UK, with absence of no more than 90 days in each of the three years?

If she has, your 7 year old son is entitled (i.e. cannot be refused) to be registered as a British citizen under Section 3(2) of the British Nationality Act 1981. Use Form MN1.

Are you currently in the UK or in the Philippines?

[vinz420]

1.) Yes, her father was born in the UK (West Sussex). Yes, my wife has lived for at leas three continuous years in the UK (from 2002-2009) and hasn't left during that period for over 90 days. Does that negate that fact if she has been in the Philippines from 2009 - present or does the law only count if you've ever stayed in the UK for 3 years?

2.) I am currently in the UK with our other two kids, my wife is in the Philippines looking after our son.

[vinny]

As secret.simon mentioned, if your wife lived in the UK for at least 3 continuous years prior to your son being born, then he is entitled to register as a British citizen under Section 3(2).

[vinz420]

As secret.simon mentioned, if your wife lived in the UK for at least 3 continuous years prior to your son being born, then he is entitled to register as a British citizen under Section 3(2).

Thank you! Do you know if we can sue the UKVI since they denied my son when we applied for it several years ago & because of their incompetence, which is now taking its toll on us and we've been split apart for almost 6 months now because of them!

[vinny]

What reasons did they they give for their refusal of the registration?

[vinz420]

What reasons did they they give for their refusal of the registration?

I can't remember the exact words anymore since this was about 6 years ago but I'm almost sure it was because my wife is "British by descent" so she doesn't get to pass on the entitlement but they obviously didn't consider the fact that most of our life was spent in the UK and just coincidentally did this application for my son when we were working in the Philippines.

[secret.simon]

What did you apply for that was refused?

If you applied for a British passport, the refusal was correct, as your youngest child is not a British citizen. He will not become a British citizen until he is registered as one.

If you applied for registration, did you apply under the correct section and submit the correct proof? In this case, for a Section 3(2) application, you will need to submit proof that
a) the maternal grandfather was born in the UK (so, his birth certificate, for instance)
b) your wife's descent from him (his marriage certificate and her birth certificate, etc)
c) your wife's marriage and your child's birth certificate
d) your wife lived in the UK for three consecutive years with absences of no more than 90 days a year (P60s if she was working)
and much more. Were all these proofs already submitted in an earlier application and refused?

The UKVI will only go through the application as you submitted it and if it was the wrong application or incorrect proof was submitted, they are quite correct in refusing it.

Immigration and citizenship requires a lot of forward planning. Now that you have the details of what is required, you have a better chance of a successful application.

Also, be aware that your youngest child will definitely not be able to pass on his citizenship to his children, unless they are born in the UK.

[vinz420]

What did you apply for that was refused?

If you applied for a British passport, the refusal was correct, as your youngest child is not a British citizen. He will not become a British citizen until he is registered as one.

If you applied for registration, did you apply under the correct section and submit the correct proof? In this case, for a Section 3(2) application, you will need to submit proof that
a) the maternal grandfather was born in the UK (so, his birth certificate, for instance)
b) your wife's descent from him (his marriage certificate and her birth certificate, etc)
c) your wife's marriage and your child's birth certificate
d) your wife lived in the UK for three consecutive years with absences of no more than 90 days a year (P60s if she was working)
and much more. Were all these proofs already submitted in an earlier application and refused?

The UKVI will only go through the application as you submitted it and if it was the wrong application or incorrect proof was submitted, they are quite correct in refusing it.

Immigration and citizenship requires a lot of forward planning. Now that you have the details of what is required, you have a better chance of a successful application.

Also, be aware that your youngest child will definitely not be able to pass on his citizenship to his children, unless they are born in the UK.

Thank you guys these forum is the best help I've received so far. I would definitely recommend this! Thank you.

[vinz420]

What did you apply for that was refused?

If you applied for a British passport, the refusal was correct, as your youngest child is not a British citizen. He will not become a British citizen until he is registered as one.

If you applied for registration, did you apply under the correct section and submit the correct proof? In this case, for a Section 3(2) application, you will need to submit proof that
a) the maternal grandfather was born in the UK (so, his birth certificate, for instance)
b) your wife's descent from him (his marriage certificate and her birth certificate, etc)
c) your wife's marriage and your child's birth certificate
d) your wife lived in the UK for three consecutive years with absences of no more than 90 days a year (P60s if she was working)
and much more. Were all these proofs already submitted in an earlier application and refused?

The UKVI will only go through the application as you submitted it and if it was the wrong application or incorrect proof was submitted, they are quite correct in refusing it.

Immigration and citizenship requires a lot of forward planning. Now that you have the details of what is required, you have a better chance of a successful application.

Also, be aware that your youngest child will definitely not be able to pass on his citizenship to his children, unless they are born in the UK.

Hi secret.simon. Reading into the legislation some more, I've just noticed that it states there that the child has to have been in the UK for 3 years as well. Because he's never lived in the UK, does that cancel everything out?

[vinny]

No. You misread. The requirement that child is resident in the UK for at least 3 years relates to Section 3(5), not Section 3(2).

[vinz420]

I really appreciate all the response guys. By the way, can someone kids day confirm this from Section 3 (2):

(3)The requirements referred to in subsection (2) are—
(a)that the parent in question was a British citizen by descent at the time of the birth; and
(b)that the father or mother of the parent in question—
(i)was a British citizen otherwise than by descent at the time of the birth of the parent in question; or
(ii)became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and
(c)that, as regards some period of three years ending with a date not later than the date of the birth—
(i)the parent in question was in the United Kingdom [F28or a qualifying territory] at the beginning of that period; and
(ii)the number of days on which the parent in question was absent from the United Kingdom [F29and the qualifying territories] in that period does not exceed 270.

I am confused with (a) and (b), do they not contradict each other? Or is it saying that my wife's grandparent should be a British born citizen (which he is)? Thank you.

[secret.simon]

The applicant is your youngest child.

(a)that the parent in question was a British citizen by descent at the time of the birth; and

The parent in question is your wife, who is a British citizen by descent as she was born to a British parent outside the UK.

(b)that the father or mother of the parent in question

That is the father of your wife.

[vinz420]

The applicant is your youngest child.

(a)that the parent in question was a British citizen by descent at the time of the birth; and

The parent in question is your wife, who is a British citizen by descent as she was born to a British parent outside the UK.

(b)that the father or mother of the parent in question

That is the father of your wife.

Sorry if I wasn't able to thank you previously! Thank you for the reply!

[vinz420]

We have just completed our Form MN1 but after reading through the forums here and speaking with the British Nationality Helpline, they did say that the registration can take up to 6 months. This means that because of the UKVI's decision above, me and my two kids here will not see their mum (my wife), and my youngest son for over a year. I think that's very unfair.

Does anyone know anyone here who have requested a special request to expedite the registration due to the fact that the UKVI should have had provided my son a visa two weeks ago and should be here with all of us in the UK for Christmas really?

Thank you for all your help in advance.

[WarMacre]

Hi there. This is my first post on this forum, so please forgive any mistakes I may make.

I am a little confused as to why you thought you needed a visa for your son, given that you yourself are British. Regardless of your wife's nationality, you can apply for a British passport for your son and he can enter the UK that way. After that you can then apply for citizenship for him while in the UK. The most a passport application should take is 6 weeks. Mine took less than 2 weeks for my daughter who was born in Indonesia.

This seems the most simple solution. Maybe too simple? Am I missing something maybe?

[CR001]

Hi there. This is my first post on this forum, so please forgive any mistakes I may make.

I am a little confused as to why you thought you needed a visa for your son, given that you yourself are British. Regardless of your wife's nationality, you can apply for a British passport for your son and he can enter the UK that way. After that you can then apply for citizenship for him while in the UK. The most a passport application should take is 6 weeks. Mine took less than 2 weeks for my daughter who was born in Indonesia.

This seems the most simple solution. Maybe too simple? Am I missing something maybe?

Have you actually read what the OP has stated? OP is on ILR, wife is British by descent. The 7 year old child whose visa was refused is NOT British and therefore cannot apply for a British passport.

[vinz420]

Hi!

Here's a timeline of our miserable experience with the Home Office and UKVI you see:

Sept 2002 - 2009: I moved with my British wife to the UK, had two kids born in the UK too so we're both British.

May 2009: moved to the Philippines to set up a satellite office for my UK employer.

Aug 2009: my youngest son was born.

May 2013: wanted to take a holiday with the family so we applied for British passport but we were refused because we were told my wife is British-by-descent, not a full-on British citizen, meaning she can't pass on citizenship to our son. This obviously made us realise that our youngest son is not British.

Nov 2016: we have made a decision to move back to the UK so we called Home Office (UK) to ask what visa to get based on criteria and they said we should get a settlement visa for my kid. We obviously didn't know at this point that my son was eligible for British citizenship and was basing it from the Home office's recommendation.

Mar 2017: finally had all the paperwork together to apply for settlement visa. Sent application on the 22nd March. UKVI website says "100% (not 95% as current site states now) of applications all done within 60 working days.

Jun 2017: me and my two British kids flew to the UK, on the basis that we would have my youngest son's Visa by July at the latest, so we can find a house to rent and apply for their school catchment etc etc.

Nov 2017: after months of waiting, we finally received the decision dated 5th October stating he is refused entry because "he is not facing any hardships or difficulties where lives at the moment". We were given an opportunity to appeal but I confirmed with the UK Tribunal that it can take another 9+ months for the appeal.

After this, we approached a few solicitors and also started this thread, and that's the only time we realised that my son was actually eligible for citizenship based on 3 (2) because my wife lived in the UK from 2002-2009 and her father is a British citizen.

[WarMacre]

Hi there. This is my first post on this forum, so please forgive any mistakes I may make.

I am a little confused as to why you thought you needed a visa for your son, given that you yourself are British. Regardless of your wife's nationality, you can apply for a British passport for your son and he can enter the UK that way. After that you can then apply for citizenship for him while in the UK. The most a passport application should take is 6 weeks. Mine took less than 2 weeks for my daughter who was born in Indonesia.

This seems the most simple solution. Maybe too simple? Am I missing something maybe?

Have you actually read what the OP has stated? OP is on ILR, wife is British by descent. The 7 year old child whose visa was refused is NOT British and therefore cannot apply for a British passport.

My bad! I did read but I admit I must have misread and I guess I presumed that the father was British as he was in the UK with the other kids.

[vinz420]

Hi again everyone.

Firstly, thank you guys for all your help and suggestions/recommendations. After speaking with some immigration solicitors, we have decided as per your suggestion/s to apply my son as a British Citizen using Form MN1 under the British Nationality Act Section 3 (2).

As you can imagine, we are obviously very displeased with their decision to refuse him entry clearance to the UK with a settlement visa and we therefore were hoping something can be done with their incompetence. If we have proof that my son, the applicant, is in fact eligible to be a British citizen, then surely he shouldn't have been denied of a visa?!

We then sent a letter to them asking them to reconsider as there is enough evidence left right and centre to prove that they made a mistake in their application and the only response we received is exactly below:

I have recieved a response from the team that dealt with your application.

They state that they are happy that this decision complies with immigration rules, and the refusal still stands due to the factors mentioned in the letter.

If you wish to dispute this decision further, we suggest that you lodge an appeal.

And yes, the word 'received' was spelt incorrectly!

Joking apart, we were hoping that they can a.) reverse the decision and/or b.) request for a refund as it is a very unfair and has costed so much financially and emotionally for splitting our family apart for this long (application took 8 months now instead of advertised 100% of application made within 60 working days). Are there any steps you guys can recommend?