Re: MN1 section 3(1) application refused

I have a similar risky situation.

I have got my BC recently and my wife has ILR . My daughter who is 2 years old and who is living in the UK for the last 8 months is on Dependent of Settled person visa running out after mid-2016.

My question is if I apply for her naturalization now, is there a chance for success under section 9.17?

Please could anyone share their opinions on this.

Thanks,
alladin

you may succeed considering the child is so young but without ILR its a big risk I think

why don't you apply for her ILR first ?

Thanks for your reply. The only reason I thought of this option was to avoid the fee for ILR for my daughter. I mean I was thinking like, if the rules are clear and my daughter is be eligible for BC straightaway, why I should I contribute the ILR fee to the homeoffice?

alladin wrote:I have a similar risky situation.

I have got my BC recently and my wife has ILR . My daughter who is 2 years old and who is living in the UK for the last 8 months is on Dependent of Settled person visa running out after mid-2016.

My question is if I apply for her naturalization now, is there a chance for success under section 9.17?

Please could anyone share their opinions on this.

Thanks,
alladin

The safest option would be to apply for ILR and then BC but if you are feeling lucky then apply for BC directly. Since your daughter is very young there is a chance it can be granted but do understand that it is not risk-free. The advantange you have is that her visa is expiring in 2016 so even if the BC applications fails you will still have enough time to apply for another visa/ILR.

Decisions like these have life-long effects and personally I would spend the money on ILR and do it right the first time instead of taking the risk and creating unnecessary complications for yourself - its a no brainer really.

Thank you for your well thought replies.

Section 55 Borders, Citizenship and Immigration Act 2009 Imposes a statutory obligation for the decision maker to consider the best interest of the children in such cases. Where one parent is settled and the other is British it appears contrary to section 55 not to allow such an application, despite guidance. A reconsideration request highlighting section 55 and the case of FI v Secretary of State for the Home Department [2014] EWHC 2287 (Admin), should prove successful, include a letter from their school showing a clear settlement and intention to remain in the UK.

Amber wrote:Section 55 Borders, Citizenship and Immigration Act 2009 Imposes a statutory obligation for the decision maker to consider the best interest of the children in such cases. Where one parent is settled and the other is British it appears contrary to section 55 not to allow such an application, despite guidance. A reconsideration request highlighting section 55 and the case of FI v Secretary of State for the Home Department [2014] EWHC 2287 (Admin), should prove successful, include a letter from their school showing a clear settlement and intention to remain in the UK.

Thank you Amber for this info.

I will make use of this if needed. My daughter is only 2, so I am unable to provide a letter from school etc although myself and my wife (child's mother) has made intentions to make UK our main home clear couple of times during applications for ILR/BC etc. Do you think this will be sufficient to prove that the future of the child lies in the UK?

Thanks,
alladin

Thanks for the replies. I have a further query with this topic and it would be great if someone could please help me.

My daughter (2.5 years old - born outside UK) has completed 1 year in the UK now. Her dependent of a settled person visa runs out in Aug 2016. Since I need to travel with her in Nov, 2015 this year, I think I will apply for her registration as BC (without applying for ILR) after returning in Dec, 2015. I am BC and my wife has ILR.

My daughter will complete 2 years of stay in UK in June 2016.

> My query is if an application of naturalization is made in Dec, 2015 but a decision has not been made by the time her dependent visa runs out, can she legally stay in the UK? I would think yes, but just checking.

> If they decided to reject the application (after her current visa runs out) and I initiate an application for reconsidering the decision (citing section 55), will my daughter have to return to home country so that she is not breaching any rules?

Thanks,
alladin

1. She would be an overstayer.
2. She may apply for SET(F).

vinny wrote:1. She would be an overstayer.
2. She may apply for SET(F).

Thanks Vinny for the reply and relevant links.

Is it correct in interpreting that Section 3C will not be triggered if a decision was not made by the time her current visa runs out? (I am not sure if applying for naturalization will be treated in same way as applying for ILR etc and so variation of leave is not valid in this case).

Thanks,
alladin

I agree that Section 3C is not applicable to citizenship applications.

There was this post http://www.immigrationboards.com/britis ... 0251.html# which referred to some recent judgments in related cases.

But wouldn't you think CW may have acted as per the guidance? I am not an expert, just asking.

HI Alladin

what was result of ur daughter mn1 nationality application,
or dod you applied ILR first for your daughter

Now 4th month since the mn1 application has been sent, waiting.

Alladin

Well watt u think based on the reasons he refused whereas circumstances and chapter 9 statements are tellinga different side of the story.

Navi123 wrote:Alladin

Well watt u think based on the reasons he refused whereas circumstances and chapter 9 statements are tellinga different side of the story.

I think since your wife is not settled yet, there may not be a strong case to use discretion to register the child.

If your wife is eligible for ILR, maybe get that first and apply for a reconsideration? Will that work?

alladin wrote:

Navi123 wrote:Alladin

Well watt u think based on the reasons he refused whereas circumstances and chapter 9 statements are tellinga different side of the story.

I think since your wife is not settled yet, there may not be a strong case to use discretion to register the child.

If your wife is eligible for ILR, maybe get that first and apply for a reconsideration? Will that work?

I don't think there is a time limit for which an applicant can ask for reconsideration. Atleast I couldn't find such. Could be a cheap way to effectively reapply.

If that was the case I would have applied for it...

HO change rules in april last year , I applied for my wifes visa as ILR dependent in May and they gave her family visa as there were some issues with the language certificate etc.

can any moderator advise on my initial query please.

regards

ILR dependant visa is nothing but "family of settled person visa"

Also have you read MN1 guidelines for section 3(1) page 12?

Where one or both parents are applying for British citizenship they may apply for one
or more children who are not automatically British at birth (see “Automatic acquisition
of British citizenship” above) to be registered as British citizens as part of a “family
application”.

Children in this category will be considered at the Home Secretary’s
discretion and will usually be registered only if both the parents are granted or already
hold British citizenship, or if one parent holds British citizenship and the other is
settled in the UK.

In your case you are BC but your wife is not settled in UK i.e. no ILR/BC.

alladin wrote:

Amber wrote:Section 55 Borders, Citizenship and Immigration Act 2009 Imposes a statutory obligation for the decision maker to consider the best interest of the children in such cases. Where one parent is settled and the other is British it appears contrary to section 55 not to allow such an application, despite guidance. A reconsideration request highlighting section 55 and the case of FI v Secretary of State for the Home Department [2014] EWHC 2287 (Admin), should prove successful, include a letter from their school showing a clear settlement and intention to remain in the UK.

hi,

So my daughter's (3 year old) section 3(1) application was refused about 2 weeks ago. I am planning to apply for reconsideration as myself (BC) and my wife (held ILR before the Section 3(1) application was made) has established our lives here and the child's future lies in the UK.

The refusal letter stated that "normally, a minor will not be registered if she not settled in the UK as defined by immigration laws. And there were no grounds found to treat this case exceptionally".

I would like to site the above case Amber has suggested and probably use the information in this thread http://www.immigrationboards.com/britis ... 0251.html#. If there is any other case I can use, could you please let me know?

It was not mentioned in the refusal letter that I have the option to ask for reconsideration of this decision if I dont agree. Is this expected or is there a change to not allow reconsideration requests for these applications?

thanks,
alladin

You can ask for a reconsideration. There is no rule that this is not allowed for refused citizenship applications.

The decision was correct, a child born abroad is expected to hold ILR (settled status) to qualify for registration as BC under section 3(1)

CR001 wrote:You can ask for a reconsideration. There is no rule that this is not allowed for refused citizenship applications.

The decision was correct, a child born abroad is expected to hold ILR (settled status) to qualify for registration as BC under section 3(1)

Thanks CR001, Do you know if there is any time limit in asking for reconsideration (I couldn't find any in Form NR) as I would like to take time drafting a proper letter either myself or with professional help.

alladin wrote:

CR001 wrote:You can ask for a reconsideration. There is no rule that this is not allowed for refused citizenship applications.

The decision was correct, a child born abroad is expected to hold ILR (settled status) to qualify for registration as BC under section 3(1)

Thanks CR001, Do you know if there is any time limit in asking for reconsideration (I couldn't find any in Form NR) as I would like to take time drafting a proper letter either myself or with professional help.

I don't believe there is a time limit. You don't need 'permission' to ask for a reconsideration. You complete the form and pay the fee. It can take a long time, HO have no time frame within which to reach a conclusion.

Out of interest and rather than trawling through all your posts, how long has your 3 year old daughter been resident in the UK?

CR001 wrote:

alladin wrote:

CR001 wrote:You can ask for a reconsideration. There is no rule that this is not allowed for refused citizenship applications.

The decision was correct, a child born abroad is expected to hold ILR (settled status) to qualify for registration as BC under section 3(1)

Thanks CR001, Do you know if there is any time limit in asking for reconsideration (I couldn't find any in Form NR) as I would like to take time drafting a proper letter either myself or with professional help.

I don't believe there is a time limit. You don't need 'permission' to ask for a reconsideration. You complete the form and pay the fee. It can take a long time, HO have no time frame within which to reach a conclusion.

Out of interest and rather than trawling through all your posts, how long has your 3 year old daughter been resident in the UK?

Thanks for replying. She has been in the UK for 1.5 years now. She came to the UK when she was 1.5 years old. She is 2 years and 11 months now.

alladin wrote:Thanks for replying. She has been in the UK for 1.5 years now. She came to the UK when she was 1.5 years old. She is 2 years and 11 months now.

What is the child's current visa status?

I am of the opinion that you will struggle to get a favourable response with a reconsideration request. The rules are clear that a child born abroad is expected to hold ILR. The argument that HO can use is that she is small and can adjust to her home country given that she has only been in the UK for a short time. You might have had more on your side if your spouse was also British.

If I was in your shoes, I would apply for ILR for the child and then apply for citizenship when your spouse does, to keep things simple and less complicated.