Visa issues with baby son

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 4:49 pm

Hi, my husband (from NZ) and I (from Oz) have been in the UK for 5 years this July 2011 on an ancestory visa (I'm on spousal visa). We had a baby here in the UK in august 2010 and as we are applying for ILR in June and thought that we would wait to add him as a dependant when we got the ILR and in the meantime when we left the country bring him back as a visitor. Wrong on our behalf and at immigration we were told we had to get him a dependant visa in the meantime (basically 500 odd pounds just to cover a few months and also we would have to leave the UK to do this). Everytime I speak to someone about this at the home office we have had a different response as to what we should do, can you please please help us and tell me what options we have at this point?? Many thanks Beth.

Post by **geriatrix** » Mon Feb 28, 2011 6:08 pm

beth2804 wrote: in the meantime when we left the country bring him back as a visitor.

beth2804 wrote:we would have to leave the UK to do this).

It is unclear (to me) if the child is currently outside the UK or presently in the UK intending to travel abroad.

If child is currently outside UK:
1. If the child needs to travel to UK before either parent is granted settlement, then apply for entry clearance as dependant (197).
2. If the child needs to travel to UK after either parent is granted settlement, then apply for entry clearance as the child of settled person (297 or 301, as the case may be).

regards

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 6:26 pm

Wr are currently in the UK he was given a two month visitor visa when we came back in after leaving for a holiday. I have been told i have to apply for dependant visa straight away (ie not wait until we apply for ilr in june) and to get the dependant visa we have to go home to nz/oz to apply.

Post by **geriatrix** » Mon Feb 28, 2011 6:54 pm

What has been suggested to you is correct, as one cannot switch from visitor status to that of a dependant (from within the UK).

regards

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 7:05 pm

Do I have any other options?

Post by **geriatrix** » Mon Feb 28, 2011 7:09 pm

Now that he is in UK as a "visitor", I don't think there is any.

Refusal of leave to enter or remain as the child of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 wrote:An application for indefinite leave to remain in this category is to be refused if the applicant was not admitted with a valid United Kingdom entry clearance for entry in this capacity or is unable to satisfy the Secretary of State that each of the requirements of paragraph 197 (i)-(vi) is met or if indefinite leave to remain is not, at the same time, being granted to the person with limited leave to enter or remain under paragraphs 128-193 (but not paragraphs 135I-135K).

regards

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 7:32 pm

Damn! Thank you for the information.

Post by **Greenie** » Mon Feb 28, 2011 7:35 pm

sushdmehta don't you think the OP can rely on immigration rule 304-309 which says:

Children born in the United Kingdom who are not British citizens
304. This paragraph and paragraphs 305-309 apply only to dependent children under 18 years of age who are unmarried and are not civil partners and who were born in the United Kingdom on or after 1 January 1983 (when the British Nationality Act 1981 came into force) but who, because neither of their parents was a British Citizen or settled in the United Kingdom at the time of their birth, are not British Citizens and are therefore subject to immigration control. Such a child requires leave to enter where admission to the United Kingdom is sought, and leave to remain where permission is sought for the child to be allowed to stay in the United Kingdom. If he qualifies for entry clearance, leave to enter or leave to remain under any other part of these Rules, a child who was born in the United Kingdom but is not a British Citizen may be granted entry clearance, leave to enter or leave to remain in accordance with the provisions of that other part.

Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom
305. The requirements to be met by a child born in the United Kingdom who is not a British Citizen who seeks leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom are that he:

(i) (a) is accompanying or seeking to join or remain with a parent or parents who have, or are given, leave to enter or remain in the United Kingdom; or

(b) is accompanying or seeking to join or remain with a parent or parents one of whom is a British Citizen or has the right of abode in the United Kingdom; or

(c) is a child in respect of whom the parental rights and duties are vested solely in a local authority; and

(ii) is under the age of 18; and

(iii) was born in the United Kingdom; and

(iv) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(v) (where an application is made for leave to enter) has not been away from the United Kingdom for more than 2 years.

I know ordinarily we would advise someone in the OP's situation to apply for a dependent visa prior to leaving the UK or for entry clearance prior to returning however the rule doesn't appear to preclude a child who has been given leave to enter from applying on the basis of this rule. Or am I missing something glaringly obvious??!!

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 7:46 pm

I just had a look at the stamp in his passport and it is a leave to enter stamp valid for 2 months is this the same as a visitor visa?

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 8:03 pm

Thanks greenie. Would that mean we would apply for ilr in June and then once my husband and I have it then apply for a visa for our son? That would mean he would be here in the uk past the 2 months given to us on his leave to remain? And then couldn't this be used as a reason to not grant a visa for him?

Post by **Greenie** » Mon Feb 28, 2011 8:12 pm

beth2804 wrote:Thanks greenie. Would that mean we would apply for ilr in June and then once my husband and I have it then apply for a visa for our son? That would mean he would be here in the uk past the 2 months given to us on his leave to remain? And then couldn't this be used as a reason to not grant a visa for him?

I'm not sure that I haven't missed something so please wait for others to reply and then we can clarify.

do you intend on applying for British citizenship for your child once you have ILR?

beth2804 · Post by **beth2804** » Mon Feb 28, 2011 8:19 pm

Ok thanks for that, yes we plan to get British citizenship after ilr.

Post by **geriatrix** » Wed Mar 02, 2011 4:28 am

Greenie wrote:I know ordinarily we would advise someone in the OP's situation to apply for a dependent visa prior to leaving the UK or for entry clearance prior to returning however the rule doesn't appear to preclude a child who has been given leave to enter from applying on the basis of this rule. Or am I missing something glaringly obvious??!!

Apologies for the late response.

My understanding on immigration rules 304-309 is (and I stand to be corrected) that these rules relate to the first entry clearance / leave to remain application by the UK-born-child (to be allowed leave as child of parent(s) under same immigration category similar to that of the sponsoring parent), but may not be applicable when the child travels without leave to remain and applies for (and therefore granted) entry clearance in the wrong immigration category (visitor in this case) and is in the UK under that category.

e.g. - Not sure if the following is do-able under the said rules: a UK-born infant exits UK without a visa, returns to UK with leave to enter as a visitor (valid for 6 months), stays in the UK for 5 years instead (and without any leave), and then applies for leave to remain / settlement / registration as British citizen.

But like I said, that's just my personal understanding, and I may be completely wrong.

regards

Post by **vinny** » Wed Mar 02, 2011 4:34 am

beth2804 wrote:Do I have any other options?

Register him as a British citizen after you're granted ILR.

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Visa issues with baby son

Visa issues with baby son