One child British, the other has been refused!

[Cucciola19]

Hi, I would like some advise as to whether we should appeal or not.
My husband and I are both EEA nationals and have been living and working in UK since 1990. We never asked for any sort of permit as we never thought we needed any (we always thought as EEA nationals we could legally stay and work here). We never claimed benefits, we have a mortgage since 1995 and no one has ever questioned our immigration status. Our son was born in London in 1997 and we applied for him to have a British passport; they asked us to prove we were settled by sending letters of employer and bank. We did and my son was given a British passport. Then our daughter was born in Leeds in 2001 and again we applied for her to have a British passport expecting to receive the same reply as for our son. Instead they told us she's not entitled to it as the law changed in 2001 and we can't be considered settled in UK as we don't have ILR! Surely if they accepted we were settled in 1997 we should be even more settled 4 years later? (We haven't divorced or moved abroad). We applied again this year, as we were told the law changed again in 2006 and our daughter (now holding Italian passport) has lived here over 10 years, but we received the same reply. So, does anyone know if it's worth appealing this decision (on the ground that they accepted we were settled in 1997) or we should just fork out the £673 needed for her registration as British Citizen (which she should get as she was born and lived here 10 years). It's seems unfair that our kids born in exactly the same circumstances should not be granted the same rights! Please advise us, thanks!!

[vinny]

See also If your parents are citizens of the European Economic Area (EEA).

[Cucciola19]

See also If your parents are citizens of the European Economic Area (EEA).

Oh we understand that our daughter was born in that stupid gap between laws where we needed ILR, but we wondered if, given that fact they accepted and didn't question our immigration status in 1997, should we have a case for reconsideration?

[vinny]

See also Lassal, New ECJ ruling on Permanent Residence. I wonder when you were considered to be permanent residents? Before or after daughter's birth?

[Cucciola19]

See also Lassal, New ECJ ruling on Permanent Residence. I wonder when you were considered to be permanent residents? Before or after daughter's birth?

I'm not sure I understand the link between our case and the one you mentioned?
Also, we have always assumed to be permanent resident as we can prove we have always worked here since 1990, but we don't hold any particular document that state we are permanent resident or that we don't have any immigration restrictions.

[Amber]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

[Cucciola19]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

That's exactly our point! The officials seem to completely disregard the fact that our son currently hold and has always held a British passport, and in order to obtain it we had provided in 1997 documentation that was accepted to confirm our status! It's seems madness that 4 years later we are considered 'in breach of immigration rules' when no one has ever questioned our stay since we started working in 1990!

[Derivaz]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

That's exactly our point! The officials seem to completely disregard the fact that our son currently hold and has always held a British passport, and in order to obtain it we had provided in 1997 documentation that was accepted to confirm our status! It's seems madness that 4 years later we are considered 'in breach of immigration rules' when no one has ever questioned our stay since we started working in 1990!

HI Cucciola

I've read it and it seems like until 2000 EEA citizens were considered settled if they were exercising treaty rights, so your son falls under this category; between 2000 and 2006 the law changed and in order to be settled exercising treaty rights wasn't enough, you needed to have ILR, so that's why your daughters application fail, because you weren't considered settled, then after 2006 you are considered settled if you have exercised treaty rights for 5 years, so I think you can apply for a permanent resident card now and then apply for your daughter's citizenship, but you need the PR card to prove that you are settled if you don't get that, I think your application will fail again. According to the UKBA you need to get ILR and then you can register your kid as BC; so I supposed that PR card is considered the same as ILR, but ask beforehand just in case. To sum it up, I think if you get the PR card and you apply after that, you will succeed, but ask them before or ask the NCS to call them and ask

[Derivaz]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

Hi Amber

Wouldn't it be because before 2000 exercising treaty rights was enough to be considered settled, but after 2000, they needed to get ILR to be considered settled and since they hadn't applied for the PR card, they were not considered settled after 2000? that's what I interpret that before 2000 they were considered settled, due to exercising treaty rights, but after 2000, they should have got a PR card to be considered settle; therefore, if they get the PR card one, they will be considered settled and be able to register their daughter as a BC, does this sound right?

Cheers

D

[Derivaz]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

Hi Amber

Wouldn't it be because before 2000 exercising treaty rights was enough to be considered settled, but after 2000, they needed to get ILR to be considered settled and since they hadn't applied for the PR card, they were not considered settled after 2000? that's what I interpret that before 2000 they were considered settled, due to exercising treaty rights, but after 2000, they should have got a PR card to be considered settle; therefore, if they get the PR card one, they will be considered settled and be able to register their daughter as a BC, does this sound right?

Cheers

D

[Cucciola19]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

That's exactly our point! The officials seem to completely disregard the fact that our son currently hold and has always held a British passport, and in order to obtain it we had provided in 1997 documentation that was accepted to confirm our status! It's seems madness that 4 years later we are considered 'in breach of immigration rules' when no one has ever questioned our stay since we started working in 1990!

HI Cucciola



I've read it and it seems like until 2000 EEA citizens were considered settled if they were exercising treaty rights, so your son falls under this category; between 2000 and 2006 the law changed and in order to be settled exercising treaty rights wasn't enough, you needed to have ILR, so that's why your daughters application fail, because you weren't considered settled, then after 2006 you are considered settled if you have exercised treaty rights for 5 years, so I think you can apply for a permanent resident card now and then apply for your daughter's citizenship, but you need the PR card to prove that you are settled if you don't get that, I think your application will fail again. According to the UKBA you need to get ILR and then you can register your kid as BC; so I supposed that PR card is considered the same as ILR, but ask beforehand just in case. To sum it up, I think if you get the PR card and you apply after that, you will succeed, but ask them before or ask the NCS to call them and ask

Thanks!
So basically we can't avoid going down the route of registration and pay £673!
It looks just like a money grubbing exercise, as it is really ridiculous to differentiate between 2 siblings born and growing up under exactly the same circumstances; surely some common sense and discretion should be applied!

[Amber]

My argument would be if you were considered settled before 2000 it should not be revoked afterwards unless you were absent from the UK for 2 years. You shouldn't be able to switch settled status on and off.

[Derivaz]

Well I think as the parents were considered settled prior to 2000 that should be enough, they were not absent for any substantial time and thus they should not be deemed later to not be settled. I would apply again and explain that the parents were settled or akin before 2000 so this should suffice. I think it's wholly unfair for them to say otherwise.

That's exactly our point! The officials seem to completely disregard the fact that our son currently hold and has always held a British passport, and in order to obtain it we had provided in 1997 documentation that was accepted to confirm our status! It's seems madness that 4 years later we are considered 'in breach of immigration rules' when no one has ever questioned our stay since we started working in 1990!

HI Cucciola



I've read it and it seems like until 2000 EEA citizens were considered settled if they were exercising treaty rights, so your son falls under this category; between 2000 and 2006 the law changed and in order to be settled exercising treaty rights wasn't enough, you needed to have ILR, so that's why your daughters application fail, because you weren't considered settled, then after 2006 you are considered settled if you have exercised treaty rights for 5 years, so I think you can apply for a permanent resident card now and then apply for your daughter's citizenship, but you need the PR card to prove that you are settled if you don't get that, I think your application will fail again. According to the UKBA you need to get ILR and then you can register your kid as BC; so I supposed that PR card is considered the same as ILR, but ask beforehand just in case. To sum it up, I think if you get the PR card and you apply after that, you will succeed, but ask them before or ask the NCS to call them and ask

Thanks!
So basically we can't avoid going down the route of registration and pay £673!
It looks just like a money grubbing exercise, as it is really ridiculous to differentiate between 2 siblings born and growing up under exactly the same circumstances; surely some common sense and discretion should be applied!

the EEA PR card costs £50, I think; I'm not sure how much registering a kid costs; but Amber has got a point too; once you are settled, it shouldn't be revoked, so if you were settled before 2000, then you shouldn't have lost that status, but since you didnt' get the card, you'll need to prove it with P60s or letters of employment; ask the NCS to call the HO and ask them

[Derivaz]

My argument would be if you were considered settled before 2000 it should not be revoked afterwards unless you were absent from the UK for 2 years. You shouldn't be able to switch settled status on and off.

that's a good point; so I guess she could prove that by showing P60s from before 2000 showing that she was exercising treaty rights, since that was considered enough to be settled back then.

[Jambo]

My argument would be if you were considered settled before 2000 it should not be revoked afterwards unless you were absent from the UK for 2 years. You shouldn't be able to switch settled status on and off.

I disagree.

Settled as defined under the immigration rules (1971 Act) as being ordinarily resident without being subject under the immigration laws. People under EEA Regulations are not under immigration rules and as such are not settled. However, The EEA Regulations normally define how people under those regulations are treated for the purpose of being considered settled.

Automatic PR was only introduced in the EEA Regulations 2006. Before that, the EEA Regulations 2000 defined settled only is specific conditions:

Persons not subject to restriction on the period for which they may remain

8.—
(1) For the purposes of the 1971 Act(11) and the British Nationality Act 1981(12), the following are to be regarded as persons who are in the United Kingdom without being subject under the immigration laws to any restriction on the period for which they may remain—
(a)a self-employed person who has ceased activity;
(b)the family member of such a person who was residing with that person in the United Kingdom immediately before that person ceased his activity in the United Kingdom;
(c)a family member to whom regulation 5(4) applies;
(d)a person who has rights under Regulation 1251/70;
(e)a person who has been granted permission to remain in the United Kingdom indefinitely.

(2) However, a qualified person or family member who is not mentioned in paragraph (1) is not, by virtue of his status as a qualified person or the family member of a qualified person, to be so regarded for those purposes.

The fact that before 2000, they were considered settled doesn't mean they are still considered settled after 2000 (and before 2006) if an application for ILR was not made.

[Jambo]

Thanks!
So basically we can't avoid going down the route of registration and pay £673!
It looks just like a money grubbing exercise, as it is really ridiculous to differentiate between 2 siblings born and growing up under exactly the same circumstances; surely some common sense and discretion should be applied!

Rules change.

People born in the UK before 1983 were automatically British so if two brothers were born in the UK in 1982 & 1983, one might be British while the other not.
50 years ago Italians could not work in the UK without a work permit but now they can.

It was a lot cheaper to register children several years back, but now if you want your child to become British you will need to spend £673.

It would be better to apply based on section 1(3) i.e. child born to a parent holding PR status. This is an entitlement section which means that the application will be granted without the need for discretion by the HO. Your don't need to apply for a PR card but you will need to provide proof of employment for continuous 5 years to show you have obtained PR automatically according to the rules in place from 2006.

[Amber]

My argument would be if you were considered settled before 2000 it should not be revoked afterwards unless you were absent from the UK for 2 years. You shouldn't be able to switch settled status on and off.

I disagree.

Settled as defined under the immigration rules (1971 Act) as being ordinarily resident without being subject under the immigration laws. People under EEA Regulations are not under immigration rules and as such are not settled. However, The EEA Regulations normally define how people under those regulations are treated for the purpose of being considered settled.

Automatic PR was only introduced in the EEA Regulations 2006. Before that, the EEA Regulations 2000 defined settled only is specific conditions:

Persons not subject to restriction on the period for which they may remain

8.—
(1) For the purposes of the 1971 Act(11) and the British Nationality Act 1981(12), the following are to be regarded as persons who are in the United Kingdom without being subject under the immigration laws to any restriction on the period for which they may remain—
(a)a self-employed person who has ceased activity;
(b)the family member of such a person who was residing with that person in the United Kingdom immediately before that person ceased his activity in the United Kingdom;
(c)a family member to whom regulation 5(4) applies;
(d)a person who has rights under Regulation 1251/70;
(e)a person who has been granted permission to remain in the United Kingdom indefinitely.

(2) However, a qualified person or family member who is not mentioned in paragraph (1) is not, by virtue of his status as a qualified person or the family member of a qualified person, to be so regarded for those purposes.

The fact that before 2000, they were considered settled doesn't mean they are still considered settled after 2000 (and before 2006) if an application for ILR was not made.

I believe to act retrospectively and remove a considered status of settlement is not only iniquum but also discriminatory towards those individuals who were EEA nationals as they did not require leave which would have put them on a track to settlement. I agree that if they entered the UK during the interim period 2000-2006 they would stand little chance if not having ILR/ILE but the fact that they were present before the rule changes and considered settled should stand firm during 2000-2006.

[Cucciola19]

Thanks!
So basically we can't avoid going down the route of registration and pay £673!
It looks just like a money grubbing exercise, as it is really ridiculous to differentiate between 2 siblings born and growing up under exactly the same circumstances; surely some common sense and discretion should be applied!

Rules change.

People born in the UK before 1983 were automatically British so if two brothers were born in the UK in 1982 & 1983, one might be British while the other not.
50 years ago Italians could not work in the UK without a work permit but now they can.

It was a lot cheaper to register children several years back, but now if you want your child to become British you will need to spend £673.

It would be better to apply based on section 1(3) i.e. child born to a parent holding PR status. This is an entitlement section which means that the application will be granted without the need for discretion by the HO. Your don't need to apply for a PR card but you will need to provide proof of employment for continuous 5 years to show you have obtained PR automatically according to the rules in place from 2006.

Thanks!
It makes sense, but I still find it unfair.

[Cucciola19]

My argument would be if you were considered settled before 2000 it should not be revoked afterwards unless you were absent from the UK for 2 years. You shouldn't be able to switch settled status on and off.

I disagree.

Settled as defined under the immigration rules (1971 Act) as being ordinarily resident without being subject under the immigration laws. People under EEA Regulations are not under immigration rules and as such are not settled. However, The EEA Regulations normally define how people under those regulations are treated for the purpose of being considered settled.

Automatic PR was only introduced in the EEA Regulations 2006. Before that, the EEA Regulations 2000 defined settled only is specific conditions:

Persons not subject to restriction on the period for which they may remain

8.—
(1) For the purposes of the 1971 Act(11) and the British Nationality Act 1981(12), the following are to be regarded as persons who are in the United Kingdom without being subject under the immigration laws to any restriction on the period for which they may remain—
(a)a self-employed person who has ceased activity;
(b)the family member of such a person who was residing with that person in the United Kingdom immediately before that person ceased his activity in the United Kingdom;
(c)a family member to whom regulation 5(4) applies;
(d)a person who has rights under Regulation 1251/70;
(e)a person who has been granted permission to remain in the United Kingdom indefinitely.

(2) However, a qualified person or family member who is not mentioned in paragraph (1) is not, by virtue of his status as a qualified person or the family member of a qualified person, to be so regarded for those purposes.

The fact that before 2000, they were considered settled doesn't mean they are still considered settled after 2000 (and before 2006) if an application for ILR was not made.

I believe to act retrospectively and remove a considered status of settlement is not only iniquum but also discriminatory towards those individuals who were EEA nationals as they did not require leave which would have put them on a track to settlement. I agree that if they entered the UK during the interim period 2000-2006 they would stand little chance if not having ILR/ILE but the fact that they were present before the rule changes and considered settled should stand firm during 2000-2006.

This is exactly our point; but do we try and complain or just put up with their decision?

[Jambo]

This is exactly our point; but do we try and complain or just put up with their decision?

For the sake of saving £673, I would argue with them. I would write a letter detailing your claim and asking for a senior examiner to review your case.

[Derivaz]

Thanks!
So basically we can't avoid going down the route of registration and pay £673!
It looks just like a money grubbing exercise, as it is really ridiculous to differentiate between 2 siblings born and growing up under exactly the same circumstances; surely some common sense and discretion should be applied!

Rules change.

People born in the UK before 1983 were automatically British so if two brothers were born in the UK in 1982 & 1983, one might be British while the other not.
50 years ago Italians could not work in the UK without a work permit but now they can.

It was a lot cheaper to register children several years back, but now if you want your child to become British you will need to spend £673.

It would be better to apply based on section 1(3) i.e. child born to a parent holding PR status. This is an entitlement section which means that the application will be granted without the need for discretion by the HO. Your don't need to apply for a PR card but you will need to provide proof of employment for continuous 5 years to show you have obtained PR automatically according to the rules in place from 2006.

So if she gets the EEA card; she'll be considered settled indefinitely; regardless of any law changes?

[Cucciola19]

This is exactly our point; but do we try and complain or just put up with their decision?

For the sake of saving £673, I would argue with them. I would write a letter detailing your claim and asking for a senior examiner to review your case.

I think we'll give it a go, might as well; but I got a feeling I'll be writing that cheque anyway!

[Jambo]

So if she gets the EEA card; she'll be considered settled indefinitely; regardless of any law changes?

Documentation under EEA regulations are optional. You don't need to have a card to have PR. You can also prove it (in future) using 5 P60s for example.

No one can guarantee it would last forever. Laws can always change. One can never know.

[Jambo]

This is exactly our point; but do we try and complain or just put up with their decision?

For the sake of saving £673, I would argue with them. I would write a letter detailing your claim and asking for a senior examiner to review your case.

I think we'll give it a go, might as well; but I got a feeling I'll be writing that cheque anyway!

Two more options to consider:

* Contact the European Cases Policy Team in UKBA to find out their view on your settled status in 2001 (for the purpose of British Nationality Act).

Their email address is EuropeanOperational@homeoffice.gsi.gov.uk
Make sure you construct your query as a general policy one as they can't comment on individual cases. Also make sure the situation is explained clearly and the questions asked are to the point. Generic questions would get generic answers.

* Apply for Confirmation of British nationality status. There is a fee for it (around £80) but if the HO state he is British, The Passport Office will issue him a passport.

[Derivaz]

This is exactly our point; but do we try and complain or just put up with their decision?

For the sake of saving £673, I would argue with them. I would write a letter detailing your claim and asking for a senior examiner to review your case.

I think we'll give it a go, might as well; but I got a feeling I'll be writing that cheque anyway!

I think the problem in your case was that they didn't know you were exercising treaty rights before 2000 so they assumed you exercised them only after 2000; if you prove that you were exercising them before 2000 and that according to that you were already settled before the new laws were implemented, they might accept that; if not, I guess you need to get prove that you are settled now and apply again