One child British, the other has been refused!

[Derivaz]

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.

OK, so it could happen that someone is granted Permanent Resident Status and then if there is a law change; they might lose that status?

Wouldn't that be contradictory? i mean if it's permanent, then one shouldn't be able to lose it?

[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.

OK, so it could happen that someone is granted Permanent Resident Status and then if there is a law change; they might lose that status?

Wouldn't that be contradictory? i mean if it's permanent, then one shouldn't be able to lose it?

I agree but history is full of examples to prove otherwise. I suggest we leave the discussion at this academic level.

[Derivaz]

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.

OK, so it could happen that someone is granted Permanent Resident Status and then if there is a law change; they might lose that status?

Wouldn't that be contradictory? i mean if it's permanent, then one shouldn't be able to lose it?

I agree but history is full of examples to prove otherwise. I suggest we leave the discussion at this academic level.

Yeah, I guess you are right.

Cheers.

[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!

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.

Thank you very much for your advise!!

[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!

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

Yeah, although we already did provide letters of our employer before 2000 to obtain our son's passport, therefore proving we were exercising treaty rights; we have absolutely no problem in providing everything they need to prove we were in continuous employment from 1990 to 2000 (I only stopped 6 month for maternity leave)

[Derivaz]

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

Yeah, although we already did provide letters of our employer before 2000 to obtain our son's passport, therefore proving we were exercising treaty rights; we have absolutely no problem in providing everything they need to prove we were in continuous employment from 1990 to 2000 (I only stopped 6 month for maternity leave)

What proof of employment did you provide for your daughter's application? letters of employment from after 2000?

[Amber]

You need to supply proof of exercising treaty rights before 2000 and state that you were considered settled before 2000 and did not leave the UK for any substantial period.

[Cucciola19]

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

Yeah, although we already did provide letters of our employer before 2000 to obtain our son's passport, therefore proving we were exercising treaty rights; we have absolutely no problem in providing everything they need to prove we were in continuous employment from 1990 to 2000 (I only stopped 6 month for maternity leave)

What proof of employment did you provide for your daughter's application? letters of employment from after 2000?

For our daughter's application we didn't include anything as we didn't think we had a problem still!
We only said that we had already proved to be settled for the successful application of our son; they completely disregarded this information and returned her Italian passport and British birth certificate without giving us a chance to provide further documentation!!

[vinny]

Also cite Lassal when applying for confirmation of British nationality status.

[Derivaz]

You need to supply proof of exercising treaty rights before 2000 and state that you were considered settled before 2000 and did not leave the UK for any substantial period.

Hopefully, that will suffice; she said that they didn't provide this with the daughter's applications; so if they provide it, I guess they will consider them settled!

[JAJ]

I disagree with the general reasoning here.

It would be better to pay the GBP673 (or whatever) for a Certificate of Registration under section 1(3) of the British Nationality Act. That will make the child umabiguously a British citizen.

The alternative strategy, even if successful, does not necessarily lead to a solid claim of British citizenship and one should be aware that being issued with a British passport does not in itself make someone a British citizen.

[vinny]

Would a successful confirmation of British nationality status be just as unambiguous?

[Derivaz]

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

Yeah, although we already did provide letters of our employer before 2000 to obtain our son's passport, therefore proving we were exercising treaty rights; we have absolutely no problem in providing everything they need to prove we were in continuous employment from 1990 to 2000 (I only stopped 6 month for maternity leave)

What proof of employment did you provide for your daughter's application? letters of employment from after 2000?

For our daughter's application we didn't include anything as we didn't think we had a problem still!
We only said that we had already proved to be settled for the successful application of our son; they completely disregarded this information and returned her Italian passport and British birth certificate without giving us a chance to provide further documentation!!

cucciola,

As Amber said; include proof that you were exercising treaty rights before 2000 and explain that due to that you held Permanent Residence back then, saying that you held PR isn't enough, you need to prove it, so include your P60s and letters of employment from your arrival in the UK to 2000 to show that you become permanent then; I think that will suffice. Let us know how you get on.

Also, do this if you can, contact your local NCS and ask them to call the HO to ask if that would suffice.

Let us know how you get on.

[Jambo]

explain that due to that you held Permanent Residence back then, saying that you held PR isn't enough, you need to prove it, so include your P60s and letters of employment from your arrival in the UK to 2000 to show that you become permanent then;

Permanent Residence was only introduced by the 2006 regulations. What you could claim is that you were considered settled before 2000. However, as I said the rules changes in 2000 changed that. Before 2000, if you were exercising treaty rights you were considered settled. So if for example the parents stopped exercising treaty rights one week before the birth, the child was not British.

[Derivaz]

explain that due to that you held Permanent Residence back then, saying that you held PR isn't enough, you need to prove it, so include your P60s and letters of employment from your arrival in the UK to 2000 to show that you become permanent then;

Permanent Residence was only introduced by the 2006 regulations. What you could claim is that you were considered settled before 2000. However, as I said the rules changes in 2000 changed that. Before 2000, if you were exercising treaty rights you were considered settled. So if for example the parents stopped exercising treaty rights one week before the birth, the child was not British.

ah ok, so they had to prove they were exercising treaty rights until the daughter was born?

But one question: if they were exercising treaty rights before 2000 and therefore became settled; don't they remain settled for ever as long as they don't leave the country for more than 2 years?

[Jambo]

But one question: if they were exercising treaty rights before 2000 and therefore became settled; don't they remain settled for ever as long as they don't leave the country for more than 2 years?

That's the £1,000,000 (or £673) question.

Would a (pre-2000) settled status stop to exist post-2000 changes if none of the conditions in Regulation 8 are met?

I believe that before 2000 people under EEA rules could have been on and off settled status depending on their treaty rights activity. I believe the Passport Office view is that the status was lost in 2000 (unless the conditions in Regulation 8 are met). Note that they were not really settled (as this requires you to be under the Immigration rules) but considered as settled for the purpose of BNA.

[Derivaz]

But one question: if they were exercising treaty rights before 2000 and therefore became settled; don't they remain settled for ever as long as they don't leave the country for more than 2 years?

That's the £1,000,000 (or £673) question.

Would a (pre-2000) settled status stop to exist post-2000 changes if none of the conditions in Regulation 8 are met?

I believe that before 2000 people under EEA rules could have been on and off settled status depending on their treaty rights activity. I believe the Passport Office view is that the status was lost in 2000 (unless the conditions in Regulation 8 are met). Note that they were not really settled (as this requires you to be under the Immigration rules) but considered as settled for the purpose of BNA.

ah ok, it seems like PR / settlement wasn't clear back then; it seems a lot clearer now; you apply for the PR card and you become permanent; so if she gets the EEA PR card, that makes her permanent for good? (if she doesn't leave for 2 years)?

[Jambo]

you apply for the PR card and you become permanent

It's the other way round. You become permanent (automatically under the regulations) and can apply for a confirmation of the status.

so if she gets the EEA PR card, that makes her permanent for good? (if she doesn't leave for 2 years)?

I feel we are going in circles here.

[Amber]

Indeed, the best bet is to apply for confirmation and if granted that solves all the issues.

[Derivaz]

Indeed, the best bet is to apply for confirmation and if granted that solves all the issues.

Yeah and it's around £50 so not expensive and it takes around 4 weeks or at least that's how long it took in my case.

[Derivaz]

you apply for the PR card and you become permanent

It's the other way round. You become permanent (automatically under the regulations) and can apply for a confirmation of the status.

so if she gets the EEA PR card, that makes her permanent for good? (if she doesn't leave for 2 years)?

I feel we are going in circles here.

Yeah sorry Jambo; i was trying to find out if PR status is different from settlement before 2000 as if permanent now really means permanent.

[JAJ]

Would a successful confirmation of British nationality status be just as unambiguous?

No. A confirmation of nationality that is issued by mistake does not make the person a British citizen.

While a Certificate of Registration cannot normally be set aside as a nullity if granted in good faith, even if the statutory requirements were not met.

[Derivaz]

Would a successful confirmation of British nationality status be just as unambiguous?

No. A confirmation of nationality that is issued by mistake does not make the person a British citizen.

While a Certificate of Registration cannot normally be set aside as a nullity if granted in good faith, even if the statutory requirements were not met.

How can a confirmation of nationality be issued by mistake? I've heard the HO is messy, but are they that messy that they issue confirmations of nationality by mistake??

I guess the best confirmation of nationality is a certificate of naturalisation of a passport?

[Amber]

I very much doubt it or if they do it will be seldom as I'm sure cases which are not straight forward would be double checked by senior staff.

[JAJ]

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!

No-one is suggesting you've ever been in breach of the immigration laws. What happened on 2.10.2000 is that U.K. law changed and clarified that from that date, most EEA nationals had only a conditional right of residence in the United Kingdom rather than an unconditional right.

The expectation at the time was that EEA nationals who wanted the rights of permanent residence should apply for Indefinite Leave to Remain (ILR) like anyone else.

So for the purposes of the British Nationality Act, you were deemed to be settled prior to that date, but no longer so deemed after that date. Obviously, they didn't retroactively take away the British citizenship of anyone who obtained a benefit prior to then (for example, your son) but they were not under any obligation to continue the deemed settled status for those who had it prior. The option to apply for ILR was available for those who wanted it.

Of course the law changed again in April 2006, and if you meet those requirements you automatically obtain Permanent Residence effective on 30.04.2006 and don't need to apply for ILR. So it appears that the child, while still under 18, is eligible for registration as a British citizen.