A few questions on the MN1 for child of 16 studying in US

[Bethanydkelly]

Hello and thank you to all for being here,

Just finding these boards is a breath of fresh air, navigating through the MN1 and making sure it's done properly can be daunting.

In a nutshell...

I moved from the US to marry my British by birth Husband in 2009,

We had the Fiance Visa, Spousal Visa, Permanent Leave to Remain and then finally British Citizenship in 2014 ~ so I am a Dual citizen, both British and American.

My son came to live with my husband and I year in 2010/2011 ~ then returned to finish high school in California with his father ~ he and has come for visits multiple times over the years, usually 2-3 times per year.

He was granted a UK Entry Clearance to Join Parents in May of 2010 that was good through March of 2012 (a sticker in his now expired passport)

I have a few questions and would really appreciate being able to review this application with someone... our local NCS that I used for my British Citizenship said that they were not familiar with the particulars of the MN1 ~ and I don't think we need a private solicitor... I just need knowledgeable advice as to if I have got all the right boxes ticked and filled out properly.

Question 1: on 1.3 ~ would his Entry Clearance granted back in 2010 apply here ~ would this be considered "indefinite leave to remain"? Also, I assume 1.2 would be left blank as he does not have a UK Border Agency number ...

Question 2) He will be in the United States attending school and his passport will be in with the application, so he will not be here for Biometrics... if I attach a cover letter explaining this, does anyone know if he would be able to get the Biometrics done in the US to meet this requirement?

Question 3) Since I am not a British Citizen by decent, I don't think I need to fill out section 3.1 ~ but wouldn't there/shouldn't there be a section for me and my son's stepfather (the way I was able to qualify for naturalization) to report our absences from the UK as well? Or do I just leave this section blank entirely... ?

Question 4) If his father has always been an American... and never been to the UK, do I need to fill out any of section 3 on him?

Question 5) In section 6, Biometrics were done when my son was granted Entry Clearance to the UK back in 2010, however I don't believe that he was issued a BRP card... would there be any place to check for this information?

Question 6) Am I, the mother, the one filling out this form who signs and ticks the boxes in the Section 8 Declaration.

Question 7) Would he being gone from the UK over the 5 year period for long stretches for school in California prevent him from qualifying for British Citizenship... From 2010 - the Present - he's been out of the UK for 1400 days. He does have an NHS number... would this go anywhere on the form?

I cannot thank you enough for helping me to wade through all of this... any and all help, advice and or guidance would be appreciated.

With love and gratitude to all.

~ Bethany x

[secret.simon]

Sorry for being a damp squib, but if the father does not have ILR (and assuming that your son was not born in the UK or any of its overseas territories), the chances of your son being registered as a British citizen are negligible converging on zero.

Page 12 of Guide MN1 states:

Registration at the Home Secretary’s discretion – Section 3(1) application

Children born abroad to parents who are applying for British citizenship

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.

The broad principle is that children born outside the UK follow the status of their less-privileged parent (in terms of UK immigration law). As your son's father has no status in UK immigration law, your son does not have one either.

Now to answer your specific questions

Question 1: on 1.3 ~ would his Entry Clearance granted back in 2010 apply here ~ would this be considered "indefinite leave to remain"?

No, because it was time-limited to May 2012. So, by definition, it was not indefinite leave to remain.

Would he being gone from the UK over the 5 year period for long stretches for school in California prevent him from qualifying for British Citizenship... From 2010 - the Present - he's been out of the UK for 1400 days. He does have an NHS number... would this go anywhere on the form?

Yes. Firstly, if born outside the UK, he is expected to have ILR. ILR is lost if he has spent two years outside the UK. Short visits to the UK do not count for the purpose of retaining ILR. ILR is meant to signify that he is settled in the UK, that it is the "center of his life" (I am borrowing language from the EEA Regulations and the Surinder Singh route as it explains the concept clearly).

In your son's case, it does not seem that he had ILR to begin with. And if he did, he would have lost it due to his absences.

[CR001]

@ss, a child from a divorced relationship living with the mother and applying for citizenship is able to apply provided the child has ILR and consent from the other parent. The child cannot however, base the application on the step parents' status.

The broad principle is that children born outside the UK follow the status of their less-privileged parent (in terms of UK immigration law). As your son's father has no status in UK immigration law, your son does not have one either.

The child can still apply for a child settlement visa to join his mother if done before the age of 18 and then follow the usual process to ILR etc....

[noajthan]

Hello and thank you to all for being here,

Just finding these boards is a breath of fresh air, navigating through the MN1 and making sure it's done properly can be daunting.

In a nutshell...

I moved from the US to marry my British by birth Husband in 2009,

We had the Fiance Visa, Spousal Visa, Permanent Leave to Remain and then finally British Citizenship in 2014 ~ so I am a Dual citizen, both British and American.

My son came to live with my husband and I year in 2010/2011 ...

I have a few questions and would really appreciate being able to review this application with someone... our local NCS that I used for my British Citizenship said that they were not familiar with the particulars of the MN1 ~ and I don't think we need a private solicitor... I just need knowledgeable advice as to if I have got all the right boxes ticked and filled out properly.

...

Question 3) Since I am not a British Citizen by decent, I don't think I need to fill out section 3.1 ~ but wouldn't there/shouldn't there be a section for me and my son's stepfather (the way I was able to qualify for naturalization) to report our absences from the UK as well? Or do I just leave this section blank entirely... ?

Question 4) If his father has always been an American... and never been to the UK, do I need to fill out any of section 3 on him?

...

Question 7) Would he being gone from the UK over the 5 year period for long stretches for school in California prevent him from qualifying for British Citizenship... From 2010 - the Present - he's been out of the UK for 1400 days. He does have an NHS number... would this go anywhere on the form?

I cannot thank you enough for helping me to wade through all of this... any and all help, advice and or guidance would be appreciated.

With love and gratitude to all.

~ Bethany x

Filling few gaps not mentioned above...

3) For application at discretion under 3(1) of BNA, section 3 of form does not apply - skip it.
(but if minor does not have ILR he/you cannot apply to register at discretion yet).

4) What is father's status?
Who has custody of minor?

It is possible to register a minor without father's consent;
for example, if it can be shown father plays no part in minor's life, no pra, no contact, no support (etc etc).

Note a step-parent is not relevant (in immigration terms) & would not appear in MN1 form.

7) An older teenger would be expected to have lived in UK for at least 2 years.
And to show that their future lies in UK.

NHS number is not relevant but could be noted on form as 'additional/further information'.

Note: If applying as an adult (once ILR has been achieved) there are strict rules on absences from UK.
Eg no more than 90 days absence in the 12 months immediately before date of application.

Also proof is required of physical presence in UK 5 years to the day before application is filed.

If methodical & organised a person should be able to handle an application for the privilege of registration or naturalisation as a citizen.

NCS is stil a good idea - for sanity-checking an application, copying documents (officially) & sending bundle off to HO.
Well worth £50 or so to catch any bloopers & gotchas.

Good luck for future application.

[noajthan]

PS If son's future is in UK much easier to get him here before age 18.

Otherwise he stands as an adult & will have to come in his own right, eg under study (Tier 4) visa route or skilled worker visa (Tier 5) or else on fiancee/spouse route.

[noajthan]

PS If son's future is in UK much easier to get him here before age 18.

Otherwise he stands as an adult & will have to come in his own right, eg under study (Tier 4) visa route or skilled worker visa (Tier 5) or else on fiancee/spouse route.

Correcting typo: skilled worker route is via Tier 2 visa (not '5')

[Bethanydkelly]

Thank you all so much for your replies and insight.

I was told several times by the home office ~ after explaining our situation that I could indeed register my son as a British Citizen since I have become naturalised as a British Citizen... even though he was born outside of the UK and was studying abroad as long as it is done before he turns 18.

They do mention that the case is not absolute but is purely discrecionary

I have looked into a different National Checking Service to make sure that all is filled out correctly... making sure the paperwork is properly done s overwhelming as any mistake could be "fatal"...

Son's future is in UK, however we do not have an absolute date of arrival.

Is it possible to hire someone outside of National Checking Service to review paperwork before submission? They will not return until after Christmas.

Quick question to Dear Char ~ you write:

"The child can still apply for a child settlement visa to join his mother if done before the age of 18 and then follow the usual process to ILR etc....

May I ask what would be the the process to ILR... would this mean another settlement visa application like we had done in 2010?

Thank you all so much for your time and trouble.

I appreicate you.

~ Anne x

[CR001]

Yes, it is another settlement visa, which he will only qualify for if applied before he turns 18.

The rules are more strict now than what they were in 2010 but he could in effect be granted ILE (indefinite leave to enter) but not sure if his age might be a factor but don' think so.

If you apply for registration as British citizen for him now, it will likely be refused and you will lose the fee. He simply doesn't qualify and HO is known for giving incorrect advice over the phone, it is after all just a call centre.

[geriatrix]

See also Chapter 9: registering minors at discretion (nationality instructions).

[noajthan]

Thank you all so much for your replies and insight.

I was told several times by the home office ~ after explaining our situation that I could indeed register my son as a British Citizen since I have become naturalised as a British Citizen... even though he was born outside of the UK and was studying abroad as long as it is done before he turns 18.

They do mention that the case is not absolute but is purely discrecionary

I have looked into a different National Checking Service to make sure that all is filled out correctly... making sure the paperwork is properly done s overwhelming as any mistake could be "fatal"...

Son's future is in UK, however we do not have an absolute date of arrival.

Is it possible to hire someone outside of National Checking Service to review paperwork before submission? They will not return until after Christmas.

...

As you have discovered, don't rely on Home Office 'helpline'.
You can always go to a solicitor or OISC-registered immigration advisor if you wish to.

Otherwise you can dig into whether Immigration Regulations, A280(b) & 297 apply in your case, see:
https://www.gov.uk/guidance/immigration ... ly-members
(it may depend on details of parental custody/support & whether son leads an independent life, etc)

Similar case except that both parents were settled in UK:
http://www.immigrationboards.com/immigr ... w#p1262035

See also: http://www.immigrationboards.com/immigr ... l#p1200974

It's unfortunate this couldn't have been started off when son was in UK some years ago.

Time is of the essence, immigration matters can move slowly and minor (son) is already an older teenager.

[Bethanydkelly]

Again thank you so much for your time and expertise,

I wish we could have started this when he first came over, that was the point.

However, unfortunately a custody battle arose that was physically, emotionally and mentally tearing my son apart.

Heartbreaking as it was, I chose to step off of the battlefield rather than see him harmed further. It nearly killed me to let go... however giving him peaceful parents and allowing him to recognize the power of love and compassion ~ I felt was far more important than allowing the battle to rage on.

He loved and loves living here, and since 2011, the father's point of view has completely changed. They now BOTH agree that what should have taken place in 2011 should be done now.

That is why we are at the 11th and 1/2 hour.

The H/O did emphasize that it is purely up to discretion (compassion and insight of particular case worker) in this case...I really would like to see if there is someone who may help me prepare the paperwork as best I can.

I feel, I have to at least try.

[geriatrix]

The H/O did emphasize that it is purely up to discretion (compassion and insight of particular case worker)

Policy instructions on when discretion can be applied trumps a caseworker's perceived compassion and insight!
I think you need to read the document I mentioned (and provided the link for) in my previous post. In particular, you should read 9.17.5.

What you want to do is your choice, the most anyone else can do is point you in the right direction - as some have attempted to do.

[Bethanydkelly]

I understand and thank you Shusdmehta, I have read and will re-read all you have sent, especially 9.17.5 ~

Would the home office tell me that there is certainly a chance that he can become naturalized if there was not hope? Do they reap the benefits of fees from the rejected qualifications?

I have spoken to several different advisors, several different times over the last three months.... and each one has told me a different version but with the same outcome ~ He qualifies ~ but only the most recent one, today's conversation said that there is no guarantee...

Is it my understanding that many on this thread are agreeing that it is best NOT to try to apply for his citizenship?

I was told that since I am a British Citizen and he is under the age of 18 we can and should apply, that to try to do so afterward would be much more difficult.

Again, appreciation for any and all light shed. I know your time is valuable, I am feeling frustrated, overwhelmed and a bit apprehensive at all of the different information I now have.

There is much resting on his ability to naturalize.

Thank you,

Bethany

[CR001]

It would be an application at discretion (completely free of emotion as HO do not base decision on emotion). A child of age 16 is expected to hold ILR and have at least two years residence in the UK.

Perhaps the advisors you are asking are not understanding your question or just want to make money out of you. I would be interested to know why they say he 'qualifies' and on what basis.

If you want to take the risk, apply, but you will lose the fee and there is no appeal for refused citizenship application, especially one that is at discretion of the secretary of state to start with.

He was born abroad, as were you and you are only British having gone through the process, through your partner, like all (most) of us. Your son would be expected to do the same. There is not retrospective benefit for him now that you are British. It might have been slightly different if he was 2 years old for example, but not at almost adult age.

I was told that since I am a British Citizen and he is under the age of 18 we can and should apply, that to try to do so afterward would be much more difficult.

It is not. If he obtains ILR and even once he turns 18, he applies in the same way as you did but with 5 years residence.

[Casa]

"Would the home office tell me that there is certainly a chance that he can become naturalized if there was not hope?"

Regrettably, Home Office 'help line' staff frequently give seriously incorrect advice, even on very basic questions. Even more concerning, they take no responsibility for the bad advice given or the consequences which can be life-changing. Members often report that following several calls to the help-line, they have received a different advice each time.

[noajthan]

I understand and thank you Shusdmehta, I have read and will re-read all you have sent, especially 9.17.5 ~

Would the home office tell me that there is certainly a chance that he can become naturalized if there was not hope? Do they reap the benefits of fees from the rejected qualifications?

I have spoken to several different advisors, several different times over the last three months.... and each one has told me a different version but with the same outcome ~ He qualifies ~ but only the most recent one, today's conversation said that there is no guarantee...

Is it my understanding that many on this thread are agreeing that it is best NOT to try to apply for his citizenship?

I was told that since I am a British Citizen and he is under the age of 18 we can and should apply, that to try to do so afterward would be much more difficult.

Again, appreciation for any and all light shed. I know your time is valuable, I am feeling frustrated, overwhelmed and a bit apprehensive at all of the different information I now have.

There is much resting on his ability to naturalize.

Thank you,

Bethany

The Home Office is not in the business of bilking people, it's just part of an impersonal and sometimes dysfunctional immigration system.

Applying now, under section 3(1) of BNA for a minor who was born abroad, and is living outside UK & is without ILR (using form MN1) will certainly be refused.

Just to clarify: for privilege of UK citizenship, minors register; adults naturalise.

Next steps ...
In general, as a minor your son needs settled status (ILR) in order to then apply to register for citizenship.

As per the Chapter 9 guidance on discretionary registration of minors, for cases like yours (one parent not on an immigration journey into UK), the father needs to be 'out of the picture';
(you will need to explain all that in your application).

There is still no guarantee as registration under section 3(1) of BNA is at the discretion of Home Secretary.
As an older teenager, son will need to have spent approx 2 years living in UK and show his future lies in UK.

As it stands he clearly doesn't have time to achieve ILR in UK, via one of the usual 5-year settlement routes, before he turns 18 and becomes ineligible to register.

Hope - but more advice required
Under section 297 of Immigration Regulations (as linked in post above) I think your son may qualify for ILE from abroad (US).

If he does then you have still have a chance to register him as a citizen before age 18.
(Remember registration at discretion so still not guaranteed)

I'm not sure on the application process & rules for ILE so you will need to wait for other members to contribute on that matter.

Otherwise, if you can get son into UK on the 'family of a settled person' visa (perhaps easier before age 18) he could perhaps eventually apply to naturalise in his own right - as an adult.
Ref: https://www.gov.uk/join-family-in-uk/overview

Hope that makes sense.

[secret.simon]

As you have spoken to solicitors about this case, I suggest that you raise the following questions with them.
a) Can a child born outside the UK get registered under Section 3(1) of the British Nationality Act 1981 without acquiring ILR/ILE?
b) What are the chances of the child getting registered under Section 3(1) without ILR/ILE and with a divorced parent in a different country?

BTW, who has legal custody of your son? Is it you solely or your former partner solely or a joint custody?

As regards your son acquiring ILR/ILE, the relevant portions of 297(i) are

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care

Is your son planning to study in a UK university? Remember that long absences, even for studies, outside the UK can invalidate the ILE/ILR. It would be best for him to finish his secondary studies in the US and then move to the UK for tertiary studies.

[Bethanydkelly]

Thank you so much for your responses and input ~ I appreciate all of you very much.

For Simon,

We have joint custody...

I really feel I must do the best I can on this, we're still consulting, still reviewing ~ if this doesn't work, we will have to go about it a different way when he finishes school in the states.

If there is even a tiny chance, I'd feel I should still try... given that it's a guaranteed no if we do not.

Warmest regards and many thanks to all.

x

[CR001]

There is no chance of an approved application for your son and you will lose the £749 fee. The fact that he has lived in the USA for the past few years also compounds this as he is not even resident in the UK, there is no reason HO should grant him citizenship when even the basic requirement (residence) is not met.

The best advice any of us have and can give you, is to apply for a settlement visa for him BEFORE he turns 18 (and not the month before) and he will be on a 5 year route to ILR and then another 12 months before he can apply for British Citizenship.

After school, he will only qualify for either a student visa or a Tier 2 General visa if he has qualifications and skills to secure sponsored employment. There is no other route for him based on your citizenship status.

I am sorry if I sound harsh, but we don't sugar coat things here and say it as it is.

I do wish you well with whatever you decide.

[vinny]

See also an example of MN1 refusal.

We have joint custody...

Unfortunately, getting a settlement entry clearance may also be difficult now.

297

• (i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
  • (a) both parents are present and settled in the United Kingdom; or
  • (b) both parents are being admitted on the same occasion for settlement; or
  • (c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
  • (d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
  • (e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
  • (f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
• (ii) ….
  …