Options available to keep my children in the UK

[DropBear]

Hi Everyone,

Many thanks to the time and effort put in by the many contributors to these forums.

I am in a bit of a pickle, and am not sure what if any options are open to me to keep my children 'legally' in the UK. Background below:

# My wife and I were both born in Australia and lived there our whole life before moving to the UK
# We had our three children in Australia between 2010 and 2014
# in Aug 2016 we moved to the UK for me to study under the following arrangements:
- I was on a Tier 4 student Visa (18 months)
- My children were dependents on my Tier 4 student Visa (18 months)
- My wife was eligible for ILR as she is British by Decent (her father was born in England)
# Following my study in 2017 I applied for Spouse Leave to Remain (5 year route) to make it easier to secure employment - which I successfully achieved.
# in 2018 before the 18 months expired in my children's dependents visa we applied for their citizenship through section 3(1) discretionary
# we were disappointingly refused due to my children being deemed as "settled" in the UK - we lost our £3,000 application fees.
# at this point we had exhausted our financial resources so not in a position to make other application.
# we are now approaching 3 years since we moved to the UK and have no intention of moving - my wife and I have good jobs and our children are in great schools.

My Questions:
1. Is it correct to assess that we will not be eligible for 3(5) because at the time of the children's birth, my wife was not a citizen (she didn't apply for this until several years after their birth)
2. What is the simple definition for "settled" in the context outlined above? when does this happen?
3. Are there any other potential options open to us once we have passed the 3 year mark in August this year (2019)?
4. Given my children have no formal right to be here, what potential ramifications do we face?
5. What would happen if we were to travel outside the UK (to France) - would my children be refused entry back to the UK?

Thank you in advance so much for any advice, guidance, thoughts you are able to share!

If I have left out any details or you need any further clarification, please let me know.

[CR001]

Your children should have applied for a visa when you switched to spouse visa.

Were your wife's parents married at the time of her birth or any time thereafter??

If your wife is British by descent, she cannot hold ILR. Do you mean she registered as British on form UKF??

1. Correct.

2. Settled means holding ILR or Permanent residence, which your children don't. Children born abroad will usually follow the same path as the less privilege parent in terms of visas/immigration, i.e. you in this case.

3. Apply as child dependents on FLR(M)??

4. NHS charges at 150%.

5. Possibly yes.

[DropBear]

Thank you for getting back to me.

Apologies for the confusion, my wife originally applied for ILR, then citizenship soon after - her parents were married.

At the time when I applied for my Spousal visa at the priority center, the official handling our case very confidential informed us, that our children would be eligible for citizenship because my wife is now a citizen... obviously this was misinformation which we learned the hard way when we applied later.

Unfortunately I am not in a position to add the children onto my spousal visa, as this will be £1,033 each (x3) + the NHS surcharge. This will then need to be re-applied for in Feb next year all over again... I process which will end up circa £10,000, not to mention the ILR application I will need to go through for the 4 of us in 2.5 years after that.

if we just wait this out until my wife and I have both been in the country for 5 years, she is a citizen and I have ILR and then apply for our children's citizenship? I know this is not the preferred option, but I just don't see a way around it financially for me.

[CR001]

Apologies for the confusion, my wife originally applied for ILR, then citizenship soon after - her parents were married.

Unclear how she qualified for ILR (indefinite leave to remain) as this requires 5 or 10 years legal residence in a qualifying visa. If her parents were married, then she is automatically British and should have applied for a Passport directly. The EXACT details and applications your wife made are VERY important as it makes a big difference on what your children can apply for.

At the time when I applied for my Spousal visa at the priority center, the official handling our case very confidential informed us, that our children would be eligible for citizenship because my wife is now a citizen... obviously this was misinformation which we learned the hard way when we applied later.

Your wife appears to have been AUTOMATICALLY British by descent since BIRTH if born abroad to a British father who was married to her mother. So not misinformation at all.

[DropBear]

Thank you so much for your time here.

Now I really am confused!

in 2016, while we were still in Australia I was applying for my student visa and looking to put my wife and 3 kids as dependents (we didn't know anything about ILR or citizenship), they rejected the application and stated that my wife instead needed to apply for ILR, which resulted in a full page ILR sticker in her Australian Passport.

Once we were in the UK, my wife applied for Citizenship and was approved and now has a British passport.

I'm not sure if we have the original paper trails, is there a way I can poll the home office to have the background?

[CR001]

Did the original ILR state 'Indefinite leave to ENTER'??

My gosh, such a waste of funds if she was already British by descent and could have applied directly for a passport.

You could apply for a Subject Access Request from HO.

general-uk-immigration-forum/how-to-do- ... 35376.html

my wife applied for Citizenship

Can she remember what form she completed??

[DropBear]

I will dig around when I get home and confirm whether it was Indefinite Leave to Remain or Enter, I will also try and get the details on which forms she filled out when she received her citizenship.

Can I just try and follow the live of logic here though? I'm just not really following what you have laid out (my fault, not yours)

Because my wife's father was born in the UK, he is a British Citizen by birth
Because he was married to my wife's mother when she was born in Australia, my wife is a British Citizen by decent

I think I can follow this logic until here (not entirely sure of the difference between British by Birth and Decent)

How does this translate into my children having citizenship? My (albeit very limited) understanding was that British by Decent could only pass down one generation? so my children wouldn't be eligible for it?

Thanks again!

[DropBear]

I am just having a look through this web page.

https://www.gov.uk/apply-citizenship-br ... -july-2006

Is this just saying that because my wife was already a citizen (whether she had a applied for a passport or not) when my children were born, my children are citizen's too?

[CR001]

I am just having a look through this web page.

https://www.gov.uk/apply-citizenship-br ... -july-2006

Is this just saying that because my wife was already a citizen (whether she had a applied for a passport or not) when my children were born, my children are citizen's too?

No, they are not automatically British as your wife herself is British by descent which cannot be passed on to children born abroad.

Section 3(5) registration would apply.

https://assets.publishing.service.gov.u ... 4.0ext.pdf

[DropBear]

I guess reading this thread here has got me concerned british-citizenship/mn1-section-3-5-par ... 58628.html

My understanding is that 3(5) is based on the premise that the parent was British at the time of the child's birth. My wife hadn't gone through any of this process before the children were born so it comes down to whether she was always a citizen regardless of whether or not she had applied for it. Does that make sense?

In any case, to apply for 3(5) we will need to wait until September this year when we tick over 3 years in country.

Thanks again!

[DropBear]

Did the original ILR state 'Indefinite leave to ENTER'??

I have just checked, and it was "CERTIFICATE OF ENT TO RIGHT OF ABODE", not ILR. Thanks for pointing this out. She applied for a British passport once she was in the country

So does this then conclude that because my wife was automatically a citizen from birth (and of course a citizen when she gave birth to our kids) that my children will be eligible to apply for section 3(5) once we have been in country for 3 years (this September)

[CR001]

I guess reading this thread here has got me concerned british-citizenship/mn1-section-3-5-par ... 58628.html

The link refers to a registration as British on form UKM, children born before 1983 to British mothers, which is completely different to your wifes case. Prior to 1 January 1983, British women were NOT able to pass on their citizenship to children. Form UKM corrected this. So this does NOT apply to your wife.

My understanding is that 3(5) is based on the premise that the parent was British at the time of the child's birth. My wife hadn't gone through any of this process before the children were born so it comes down to whether she was always a citizen regardless of whether or not she had applied for it. Does that make sense?

If your wife was born to a British born Father AND he was married to her mother, she is automatically born British by descent if born abroad.

[DropBear]

Thank you so much for your help today! I really appreciate it!

[CR001]

Thank you so much for your help today! I really appreciate it!

You're welcome. Feel free to continue asking any questions you have or updating if you look at all the documents etc you might have.