MN1 application after T2/ILR dependent

I am planning the timeline and steps for my child and have a question about a very specific situation. All comments & inputs welcome, thanks.

Situation - I am due for ILR in some time. I will apply for my child's MN1 british citizenship registration after my ILR. We will then travel to India on his Indian passport. In some time his MN1 approval would come and his Indian citizenship would be terminated automatically while the child would be in India.
What happens in this? Can he just apply for UK passport from India and then use it to travel back? Would he face any problems? Would he become an illegal resident? Will he have any deadline or leave India after MN1 is approved?

Dear members,

Need your help.

I am due for ILR in June 2021 and want to travel to India with my child (recently born) after my ILR (in July 2021). I am contemplating between a two choices -

Choice 1) applying for T2 dependent now for child, get my ILR, travel to India, come back and then apply for child's MN1 immediately.
Assuming I can do this, i.e. I don't have to wait for any period of time just because the child has T2 dependent visa.
Choice 2) get my ILR in June 2021, apply for child's MN1 in June 2021, travel to India without any visa for the child in July 2021, wait there for a few months (Max until September 2021) for MN1 approval, then apply for UK passport from India and then travel back using child's Indian passport in October 2021.

(I & child currently have Indian passports.)

What do you think is a better choice among the two?

Thanks.

When will your T2 and your wife’s dependant leave expire?

vinny wrote: ↑

Mon Mar 08, 2021 11:36 am

When will your T2 and your wife’s dependant leave expire?

July 2021.
Would the child be granted T2 dependent only until July 2021 in this case? Perhaps that's the key question?

Yes, if child applied before you applied for ILR.

vinny wrote: ↑

Mon Mar 08, 2021 11:42 am

Yes, if child applied before you applied for ILR.

I would apply for T2 dependent before my ILR just to save cost of ILR dependent and save time of MN1. But if T2Dep won't be granted for any significant period, then that does not help. I believe this is what you meant to be double sure.
Then the only choice I have is to apply for dependent ILR along with my application because my wife wants to travel with the child.
Just to confirm, if the child gets ILR dependent in June 2021, would the child be eligible to apply for MN1 in say September 2021? There is not formal wait required, correct?

If you are applying for ILR under the Skillled worker rules, then wife and child may also apply under the Skilled worker dependant rules.

vinny wrote: ↑

Mon Mar 08, 2021 11:55 am

If you are applying for ILR under the Skillled worker rules, then wife and child may also apply under the Skilled worker dependant rules.

Thanks. I am aware of this. My questions if after the child is granted ILR (dependent on us), can the child apply for MN1 only a few months after receiving ILR dependent? Therefore, we get child's ILR, finish the travel and apply for MN1.

For a UK born child, child’s immigration status is irrelevant to child’s entitlement to register.

vinny wrote: ↑

Mon Mar 08, 2021 12:06 pm

For a UK born child, child’s immigration status is irrelevant to child’s entitlement to register.

Many thanks. This is what I was looking for.

So either I spend around £3000 if I do wish to travel or I don't travel until the end of the year.

Thanks CR001 for merging.
Based on the previous advice and my research on the same, I have decided to go to child's ILR application for now. However, I have read some confusing stuff on this situation and have a question:

My child was born recently and doesn't have any UK Visa. I have Tier 2 General and will be applying for ILR soon. I wish to apply for my child's ILR (as dependent) along with my ILR application.

Ques 1) Is there is requirement for child's ILR application that the child needs to have Tier 2 dependent visa before being eligible to apply for ILR?
Ques 2) Can the child straightforwardly apply for dependent ILR along with my ILR application, i.e. without any UK visa, with a foreign passport?

It would be great if you could provide a link to the exact rule that confirms this.

Many thanks.

1. No.
2. Yes, but probably not straight forward, if other parent is not eligible for ILR.

2. Unfortunately, some caseworkers prefer to openly ignore the UK born child rules. They may grant child’s leave in line with the other parent’s limited leave, subject to IHS.

Thanks for the response I was hoping for. However, the case you mentioned is indeed unfortunate and is worrying because the sole reason I am going to spend £3000 child's ILR app is because we wish to travel in the near future. If such ignorance would cause challenges, I could rather apply for MN1. Once again, not sure what to do.

Vinny, how often have you seen such cases of ignorance? And perhaps in the recent times? The case example you gave is from 2017, not sure if things improved after that.

I suspect the UK born child rules are not well known to both applicants and caseworkers. So expect ignorance, if relying on them.

In practice, ECOs will rarely have to deal with this category of entry clearance application.

Understood. I contacted a very experience immigration lawyer and even he wasn't fully sure if the child needs a leave to remain before applying for ILR. He is investigating.

However, it is honestly not expected even a bit for a case workers to know the all the rules. After all, the application pays exorbitant amount of fees for the very service.

Nevertheless, I will update here what I finally decide to do and the outcome if I do go for ILR dependent app.

Thanks.

A UK born child, who had never applied for leave nor been granted leave, does not require leave when applying for FLR or ILR.

vinny wrote: ↑

Wed Mar 17, 2021 11:29 am

1. No.
2. Yes, but probably not straight forward, if other parent is not eligible for ILR.

2. Unfortunately, some caseworkers prefer to openly ignore the UK born child rules. They may grant child’s leave in line with the other parent’s limited leave, subject to IHS.

Vinny, 2 quick things:

Pardon my oversight, I see that you also wrote "if other parent is not eligible for ILR". In my case both parents are eligible for ILR at the same time.

I see that you have updated your post with comment "They may grant child’s leave in line with the other parent’s limited leave, subject to IHS". - what exactly does this mean? Do you mean I would apply for dependent ILR and instead get in a limited leave to remain?

And your last comment "A UK born child, who had never applied for leave nor been granted leave, does not require leave when applying for FLR or ILR."
- Yes, this is what I understood from your once comment/post but you also said that some case workers have ignored this in the past. Hence my uncertainty. Hope I understood this correctly.

If both parents have the same leave or are applying for the same leave, then caseworkers may grant child’s leave in line with the parents’ under the normal dependant rules, subject to the parents’ route.

If parents have different periods of leave leave, then there is a conflict between the UK born child rules and the normal dependant rules.

The UK born child rules may grant child’s leave in-line with the parent’s leave that expires later.
The normal dependant rules may grant child’s leave in-line with the parent’s leave that expires sooner.

Under the normal dependant rules, a child’s application for leave may be subject to overstaying exception for some routes.

However, a UK born child who has never applied for leave cannot be an overstayer, as there is no leave to expire.

vinny wrote: ↑

Wed Mar 17, 2021 1:27 pm

If both parents have the same leave or are applying for the same leave, then caseworkers may grant child’s leave in line with the parents’ under the normal dependant rules, subject to the parents’ route.

If parents have different periods of leave leave, then there is a conflict between the UK born child rules and the normal dependant rules.

The UK born child rules may grant child’s leave in-line with the parent’s leave that expires later.
The normal dependant rules may grant child’s leave in-line with the parent’s leave that expires sooner.

Under the normal dependant rules, a child’s application for leave may be subject to overstaying exception for some routes.

However, a UK born child who has never applied for leave cannot be an overstayer, as there is no leave to expire.

Thanks Vinny. I am trying to make sense of this by carefully re-reading. This is a bit complex honestly.
What I understood for my case is that because both parents are eligible for ILR at the same time and both are apply for ILR Set(O), the caseworker may grant ILR to the child as well, i.e. in line with parents' application. And also, the child wouldn't be considered an overstayer because the child doesn't have any leave that would expire, because the child was born in UK.
In addition to the above understanding, there is a bit of uncertainty because caseworkers have not in the past clearly considered "overstaying" in case of "born in UK".

Please let me know if I misunderstood anything. Many thanks.

Anyone with limited leave, without a pending in-time valid application, may become an overstayer after leave has expired.

vinny wrote: ↑

Wed Mar 17, 2021 11:29 am

1. No.
2. Yes, but probably not straight forward, if other parent is not eligible for ILR.

2. Unfortunately, some caseworkers prefer to openly ignore the UK born child rules. They may grant child’s leave in line with the other parent’s limited leave, subject to IHS.

Hi again. I am still struggling and researching to reach a solid conclusion. My UK born child doesn't have any leave to remain right now and no application has been made. You confirmed above that the child does not need any existing permission to be able to apply alongside parents for ILR. Both parents are eligible and applying at the same time for ILR (Tier 2 Gen --> 5 years --> ILR Set(O)).

However, I am trying to go through the rules in detail and find it otherwise. The rules seem to mention that any dependent child applying for ILR with parents or after parents have been granted ILR, the child does need to have a previously granted leave to remain. References below. Could you please confirm if these rules apply in my case ? If not, why not?

> Para 298 (ii) of Part 8 of Immigration rules (https://www.gov.uk/guidance/immigration ... ly-members)
> SW 39.2 under Appendix Skilled Worker (https://www.gov.uk/guidance/immigration ... led-worker)

Many thanks.

@vinny did you get a chance to see my last post?

Then, I think, child may rely on the UK born rules. Requires no prior leave. If both parent are granted ILR, then child’s ILR would be consistent with the other rules.

vinny wrote: ↑

Thu Apr 15, 2021 10:46 am

Then, I think, child may rely on the UK born rules. Requires no prior leave. If both parent are granted ILR, then child’s ILR would be consistent with the other rules.

I referred to the link you posted - the post mentions further rules and links to those rules. Most of the links are being redirected to the same link I posted. It appears that the overall rules have been updated in December 2020 and having a leave for a child born to non-settled parents is now apparently required to have a dependent leave. This was also indicated by my solicitor yesterday who is a renowned one in this domain.

306 does not require prior leave.