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Re: Born-abroad child w/o ILR - MN1 3(1) refused

A section for posts relating to applications for Naturalisation or Registration as a British Citizen. Naturalisation

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

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Re: Born-abroad child w/o ILR - MN1 3(1) refused

Post by secret.simon » Mon Jul 04, 2016 7:24 pm

Casa wrote:Why have you resurrected an old post from 2012? satish333 hasn't logged on to the forum for 12 months!
BIG Dobby has been reviving multiple threads on the topic of registration of children under Section 3.1 without ILR for the past week.

I presume he is referring to the casework in this thread and this article. They suggest that the child's best interests trumps all guidelines. If that is the case, ILR would not be required for Section 3.1 registration, especially in a case where one of the parents has naturalised after the child's birth.

It is not improbable that BIG Dobby is trying to provoke a test case.

Vinny, you have commented on the earlier thread. Can you comment on the relevance of those cases to this line of reasoning?
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Re: Born-abroad child w/o ILR - MN1 3(1) refused

Post by vinny » Tue Jul 05, 2016 1:32 am

Yes, it's possible for a child to succeed without ILR. Caselaws and Section 55 may also be on the applicant's side.

However, it may not be simple nor normal. Unfortunately, satish333 apparently could not convince the caseworker to grant registration. He hasn't further updated us on his progress. Similarly, frazhassan.

There may also be additional complications associated with the Good Character requirements, if the child overstays and is aged 10 or over.

My view is that it's safer to keep things as simple and normal as possible for the caseworker. Try to avoid any grounds that they may use for refusing.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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Re: Born-abroad child w/o ILR - MN1 3(1) refused

Post by secret.simon » Tue Jul 05, 2016 3:35 am

Vinny, would I be correct in stating that the Section 55 referenced in the earlier post has not yet been commenced?
vinny wrote:My view is that it's safer to keep things as simple and normal as possible for the caseworker.
While most would agree with a safety-first approach, some people would reason that the price of an additional ILR is too high to justify and would be willing to risk a registration without ILR.

What we need is somebody to be a guinea-pig and go through the courts to create case-law on this specific point.
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Re: Born-abroad child w/o ILR - MN1 3(1) refused

Post by vinny » Tue Jul 05, 2016 4:01 am

secret.simon wrote:Vinny, would I be correct in stating that the Section 55 referenced in the earlier post has not yet been commenced?
Section 55 came into force on 2nd November 2009.
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Re: Born-abroad child w/o ILR - MN1 3(1) refused

Post by BIG Dobby » Tue Jul 05, 2016 7:46 pm

secret.simon wrote:Vinny, would I be correct in stating that the Section 55 referenced in the earlier post has not yet been commenced?
vinny wrote:My view is that it's safer to keep things as simple and normal as possible for the caseworker.
While most would agree with a safety-first approach, some people would reason that the price of an additional ILR is too high to justify and would be willing to risk a registration without ILR.

What we need is somebody to be a guinea-pig and go through the courts to create case-law on this specific point.

My Dear Vinny & CO

Sorry that I have inadvertently resurrected stale news/decisions/refusal... It is quite annoying that it is obvious that Home Office has been trying to lure people to fall into traps they intentionally set in order to generate funds for the own benefit.

Inasmuch as I agree with safety-first approach, I have resolved to challenge any refusal which falls within the scope of discretion under sec3(1) 9.17.9... exercised by Home Secretary(e.g: my wife is on 5 yr visa n my son born outside of the UK is on 5 yr visa issued 4 jan 2015 n myself a BC).

I must keep you updated once put in the application. I intend to make it by February next yr so as to be financially ready for any Legal issues. I wont involve a solicitor initially but will once refusal is issued.

Thank you guys for your write-up and encouragement... Most people are very selfish in the sense that once they got what they wanted, they wont even return to say Thank You but you guys are different or discuss their circumstances

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Re: Born-abroad child w/o ILR - MN1 3(1) refused

Post by BIG Dobby » Tue Oct 04, 2016 4:51 pm

BIG Dobby wrote:YOU don't need ILR to register your child. A child who is not up to the age of 10 does not necessarily need leave to remain (although expected). You have no other sibling(s) who are British.

The law does not necessarily require both parents to be settled. One parent can be British and the other Settled or One parent can be British and not settled.

If you are refused, apply Judicial Review (though expensive).... they know you wont be able to afford it.

There is no time limit to apply for administrative review for extra money. The best is Judicial Review where intelligent Lawyer will deliberate on it...

Application has been made. Expecting the outcome! I feel certain wave of uncertainty over it but I am confident I will pull through. If you dont have the wherewithal for this application including large documentary evidence, PLEASE DO NOT APPLY until as such you meet HO policy requirement for granting discretionary application.

Application type: MN1 Sec 3(1) Child not settled, Mother not settled, and father BC>>>> see timeline for update

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Re: MN1 section 3(1) application refused

Post by alladin » Thu Oct 06, 2016 10:12 am

Best of luck on your application.

In my case, I applied for ILR on the day my daughter's visa was expiring and was granted ILR (both on 3rd Sept.).

And today I got her certificate of registration as British citizen although I didn't make an application for that. I did have a pending MN1 reconsideration request(made on Feb, 2016) which was not decided at the time I applied for ILR. I am not sure if the reconsideration request took into account the fact that she was granted ILR or was independent of it.

Cheers,
alladin
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Re: MN1 section 3(1) application refused

Post by BIG Dobby » Fri Dec 16, 2016 12:03 pm

vinny wrote:Yes, it's possible for a child to succeed without ILR. Caselaws and Section 55 may also be on the applicant's side.

However, it may not be simple nor normal. Unfortunately, satish333 apparently could not convince the caseworker to grant registration. He hasn't further updated us on his progress.

There may also be additional complications associated with the Good Character requirements, if the child overstays and is aged 10 or over.

My view is that it's safer to keep things as simple and normal as possible for the caseworker. Try to avoid any grounds that they may use for refusing.



Finally, I got certificate of registration as BC today. The application took 4 months and 3 days to decide. Remember: Child Not Settled; Mother Not Settled; Father BC; BC Siblings. Case closed. I have tried to upload file but it says 50KB n I dont know how to further reduce the size (See Attached)

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Re: MN1 section 3(1) application refused

Post by vinny » Fri Dec 16, 2016 12:04 pm

Congratulations! Well done! :D
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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Re: MN1 section 3(1) application refused

Post by ALI97 » Fri Dec 16, 2016 2:19 pm

Hi Big doby
congratulations. ..can you share more what documents you sent with your kids application and if u can share covering letter ets.it will help others as well.
thanks
Ali

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Re: MN1 secyhi tion 3(1) application refused

Post by ALI97 » Fri Dec 16, 2016 2:36 pm

Hi BIG Doby
I send you pm please reply my pm
Thanks
Ali

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Re: MN1 secyhi tion 3(1) application refused

Post by CR001 » Fri Dec 16, 2016 3:16 pm

ALI97 wrote:Hi BIG Doby
I send you pm please reply my pm
Thanks
Ali
Post in public so that all members can benefit. PM function can be withdrawn if abused and unsolicited PM's are continuously sent to members.
Char (CR001 not Casa)
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Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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Re: MN1 section 3(1) application refused

Post by BIG Dobby » Fri Dec 16, 2016 3:56 pm

ALI97 wrote:Hi Big doby
congratulations. ..can you share more what documents you sent with your kids application and if u can share covering letter ets.it will help others as well.
thanks
Ali
I am finding it difficult to get the file to 50KB. I think what tipped it to my favour is the fact that apart from his mother (my wife) who is not settled, all his (two) siblings are BC. I told Home Office (HO) that family life was engaged and because he has lived more than half of his life in the UK (aged 6), private life was engaged. Remember: CH 9.17.2: The most important criteria is that the child's future could clearly be seen to lie in the UK. Hence, One parent is BC n the other parent, whilst not settled is unlikely in the short or medium term to be returnable to his or her country of origin (as she has been granted Leave to Remain with BC children/spouse), and there is otherwise no reason to think that the child’s future does not lie in the United Kingdom.

Family life under article 8 captures the right to develop and maintain relationships with others and, in my child's case, this included my very self, BC siblings and even his mother as she is not returnable. He has lived in the UK for 3 and 2 months at the time of application in August 2016. Get the Dr to write that he has issues under review even if it is eczema. get the headteacher to write stating obvious facts of your house hold circumstances n that he is the only person in his class who is not a BC. Get the Rev Fr or minister of religion to write that you have perfectly bonded with bC n in the life of the christian n local community. get your MP to support you. my child's referees were high ranking Ministers of Religion (a Rev Fr n Monsignor of his former school and church in Yorkshire b4 we moved to Hampshire). Put in all School pictures n Reports. Put all passports n biometric residence permit. put in EHIC n NHS letters. All your payslips n self employment if applicable. Dont apply close to his ILR as it may be perceived you are trying to avoid paying for ILR first (apply 2 or 3 yrs before s/he qualifies for ILR but make sure s/he has lived in the UK for minimum of 2 yrs). Get as many Representations as possible because the Secretary of State should not normally fail to have proper regard to these (Ch 9.1.6). put other extras like:

o Birth Certificates (1X Ni; 2X UK Short Copy; 2X UK Long Copy)
o Marriage Pictures 9X
o Change of Name Deed Poll 3X
o Marriage Change of Name 1X
o Self-Employment Class 2 NI and Tax Payments
o UK Driving Licence 1X
o European Health Insurance Cards 4X
o Biometric Residence Permits X2
o British Passports (1X for M; 2X Siblings)
o Ni/Brit Passports (3X Current; 3X Expired)
o Representations: MP; your manager; Elderly Relative (2nd Dad) and Medical Letters of Support 1X
o Police Character Reference (2X UK; 2X N)
o Housing Lease Agreement 1X
o Council Tax 1X
o Degree Certificate from the University in the UK 1X
o Bank Statements and Payslips
o University School Fees
o Past Employment and Self-Employment Self-Assessment
o Child Benefit and Tax Credit; Maternity Documents
o Exercise of Franchise (voting Letters)
o Proof of Address
o Past Employment and Self-Employment Self-Assessment
o Photograph of Siblings and their Mother


I completed extra information by stating the obvious:

Future intentions – additional information (further grounds)

Since the burden of proof is on the applicant and standard of proof is on the balance of probabilities, the applicant relies on Chapter 9.17.2, 9.17.9 and 9.17.26 with the former forming the building block in the establishment of his close ties with the UK.

These may be broken down to:
1. Family’s past behaviour
i) Applicant’s parent (father)
ii) Applicant’s other parent (mother)
2. Applicant’s past behaviour

The criteria applicable to minors applying for registration are set out under chapter 9 of BNA 1981: ‘9.17.2 The most important criterion is the child’s future should clearly be seen to lie in the UK. A reliable indicator should be the applicant’s and/or the family’s past behaviour. If that suggests an established way of life in the UK, and we have no reason to think that this will not continue, we should accept at face value that the child intends to live here’.

Finally, remind them politely that Ch 6.14.5 Section 44 of the 1981 Act applies to the 1983 Act and the 1996 Act (but with the exception of subsection (3), when it was in force). In dealing with applications under the 1981, 1983 and 1996 Acts, we must always bear in mind that our actions and decisions may be challenged in the courts. It cost me £118 postage (Royal Mail including return delivery envelope)

I was ready to challenge it so keep money and make sure you have a case.

Apologies - I did not proofread it

Good luck, folks!!!

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Re: MN1 section 3(1) application refused

Post by ohara » Fri Dec 16, 2016 5:45 pm

Clearly HO have exercised discretion to act in the the best interests of the child.

Congratulations.

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Re: MN1 section 3(1) application refused

Post by BIG Dobby » Fri Dec 16, 2016 6:07 pm

ohara wrote:Clearly HO have exercised discretion to act in the the best interests of the child.

Congratulations.


Thanks dear. You are right! It was granted based on family unity. Even one solicitor was really surprised I got it; he said that it is ordinarily almost impossible. Family unity means to unite him withe rest of his siblings who are British having regard to his welfare n best interests

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Re: MN1 secyhi tion 3(1) application refused

Post by BIG Dobby » Fri Dec 16, 2016 10:38 pm

ALI97 wrote:Hi BIG Doby
I send you pm please reply my pm
Thanks
Ali
It says I was not authorised to view your pm. I don't know y

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Re: MN1 section 3(1) application refused

Post by ALI97 » Mon Dec 19, 2016 1:40 pm

HI BIG Dobby
Thanks for sharing lot of information.
My question is what moderator opinions now....can we apply mn1 without ilr for outside born childrens currently on depending ndent tier 1 visa if parent British ,sibling British, children live more than half of their ages in uk around 08 years,father permanent job,and own house.etc this is my scenario.
I know moderator are always saying should apply after ilr but I want to know now after the success of BIG Dobby.
Thanks
Ali

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Re: MN1 section 3(1) application refused

Post by noajthan » Mon Dec 19, 2016 2:33 pm

ALI97 wrote:HI BIG Dobby
Thanks for sharing lot of information.
My question is what moderator opinions now....can we apply mn1 without ilr for outside born childrens currently on depending ndent tier 1 visa if parent British ,sibling British, children live more than half of their ages in uk around 08 years,father permanent job,and own house.etc this is my scenario.
I know moderator are always saying should apply after ilr but I want to know now after the success of BIG Dobby.
Thanks
Ali
Opinion is the same, section 3(1) registration is discretionary. Discretion of Home Secretary may go either way.

Each case is unique and is judged on own merits so one success does not create a precedent.
In fact UKVI/HO seems diligent in its avoidance of creating precedents.

Members have reported one or two cases where a minor was not settled and granted registration; more cases seem to have been reported which were refused.
There's many a slip twixt cup and lip and so it's not wise to count chickens until they're hatched.
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Section 3(1) discretionary MN1 registration of child without

Post by secret.simon » Mon Dec 19, 2016 3:16 pm

ALI97 wrote:can we apply mn1 without ilr for outside born childrens currently on depending ndent tier 1 visa if parent British ,sibling British, children live more than half of their ages in uk around 08 years,father permanent job,and own house.
The way these forums work is that we as a community of immigrants learn from each other's experience. The moderators are not lawyers, merely forum members who have been around for a while and have thus acquired a memory of people's experiences and they use that memory to guide the discussions among forum members.

Big Dobby's experience suggests that discretion can be exercised when the child has a preponderance of his life interest in the UK, such as the majority of his family and of his life so far and it is in the child's best interests.

But the thing about discretion is that it is...discretionary. It may or may not be exercised, depending on the specific facts of the case and on the caseworker's interpretation of those specific facts.

Big Dobby's case is encouraging, but that is no guarantee that the same discretion would be exercised in your case. It is likely, but not guaranteed. The only way to know if it would be exercised would be to make the application yourself.

What this case does demonstrate is that the caseworker looks at the facts holistically, rather than decide the entire case on specific details.

Slightly off-topic, but may I suggest that this thread be retitled to "Section 3(1) discretionary MN1 registration of child without ILR" or words to that effect, to make it clear what this thread pertains to?
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Re: MN1 section 3(1) application refused

Post by BIG Dobby » Mon Dec 19, 2016 5:34 pm

ALI97 wrote:HI BIG Dobby
Thanks for sharing lot of information.
My question is what moderator opinions now....can we apply mn1 without ilr for outside born childrens currently on depending ndent tier 1 visa if parent British ,sibling British, children live more than half of their ages in uk around 08 years,father permanent job,and own house.etc this is my scenario.
I know moderator are always saying should apply after ilr but I want to know now after the success of BIG Dobby.
Thanks
Ali


Hi ALI97

naojthan and secret.simon have said it all. I had to share it for people to believe. I applied for his passport today as well.

See if this matches with your circumstances.

1. I have British children and my son born outside is my first son.

2. I got representations to support the application and Not after applying.

3. His (my child) time in the UK was 2011 but I put 2013 because his absence was more than 6 months.
I still mentioned it in additional info so as not to hide material facts.

4. I told them that my wife though not settled could not be returnable as she qualifies for family life as parent of BC children, Family life as a spouse, Victim of Domestic violence and exceptional circumstances; hence, returnability does not only apply to asylum cases.

5. I told the GPs n headteacher what to write and how

6. I got Representation from my MP etc

7. I got letter from my manager and elderly relative

8. I applied 3 years early. so dont apply like 3 months to the expiry of his/her visa as it may be perceived you are trying to avoid paying for ILR - 6 months is ok by me.

You have a very good to strong case by my assessment. But remember - it's discretionary so it could go either way. If you are not strong to challenge it then go and get ILR but I think you have a stronger case than me as you wife has got ILR while mine qualifies in Dec 2019 and i still succeeded.

Let me know if you want me to draft a letter or assist you in anyway as permitted by the site policy. You need a very large material evidence...

Good luck dear

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Re: MN1 section 3(1) application refused

Post by noajthan » Mon Dec 19, 2016 5:39 pm

Good points.

Too many members come and ask solely on basis of saving ILR fee without performing a full cost-benefit analysis and risk assessment.

And well worth noting:
9.17.12
An application which falls outside these criteria should not normally be approved, even if there are British citizen siblings or siblings with entitlements to registration as a British citizen, unless we are satisfied that registration would be in the child's best interests.
https://www.gov.uk/government/uploads/s ... 150402.pdf
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: MN1 section 3(1) application refused

Post by Angie77 » Tue Dec 20, 2016 9:54 am

Big Dobby you give us hope!
I am about to become British and husband is PR holder . Our children age 10, 12 and 15 living in uk less than 2 years as European's passport holder. However they clearly have their future tied up to UK as both parents are settled here. Seriously thinking of waiting until they are here for 2 years and taking my chances and apply for their British registration.
They are currently going to school but that's all.
Do you have any suggestion about what I could do in this meantime to strengthen my case? Maybe going to church or doing something else?

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Re: MN1 section 3(1) application refused

Post by noajthan » Tue Dec 20, 2016 10:47 am

Angie77 wrote:Big Dobby you give us hope!
I am about to become British and husband is PR holder . Our children age 10, 12 and 15 living in uk less than 2 years as European's passport holder. However they clearly have their future tied up to UK as both parents are settled here. Seriously thinking of waiting until they are here for 2 years and taking my chances and apply for their British registration.
They are currently going to school but that's all.
Do you have any suggestion about what I could do in this meantime to strengthen my case? Maybe going to church or doing something else?
That's always been an option. However settled status is clearly advisable.
The 3(1) application is (always) discretionary. Discretion of Home Secretary may go either way.

Caseworkers do not work in an ad hoc way and are not keen on creating precedents that would drive a coach and horses through BNA. They follow guidelines which are in the public domain.
Older teens in particular have special provisions applied to them.

This has all been explained in the other posts you have made.

Going to church is unlikely to cut the mustard. On the other hand, having a chosen (and documented) ambition and a planned career path that is predicated on being a British citizen may help the cause.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: MN1 section 3(1) application refused

Post by BIG Dobby » Tue Dec 20, 2016 11:57 am

Angie77 wrote:Big Dobby you give us hope!
I am about to become British and husband is PR holder . Our children age 10, 12 and 15 living in uk less than 2 years as European's passport holder. However they clearly have their future tied up to UK as both parents are settled here. Seriously thinking of waiting until they are here for 2 years and taking my chances and apply for their British registration.
They are currently going to school but that's all.
Do you have any suggestion about what I could do in this meantime to strengthen my case? Maybe going to church or doing something else?

Hi Angie77
If you both are from the EU then it is not a big as PR is only £65 as against £1870 for ILR - I can see u dont want to wait that long just like me. Once both of you are British, I would describe an application under Sec 3(1) as automatically agreed based on nationality policy without PR for the kids. You can still take a chance when you have BC and ur spouse on PR but chances are they could be refused as children are 'normally' expected to hold PR or ILR as well as resident for at least 2 yrs in the UK (with absence exceeding 6 months).

Put any document u think could be very instrumental - no right or wrong answer. When I requested for a return of document on the 24 Oct 16, Home Office (HO) deliberately retained some document mainly my elderly relative's/Manager's representations; hence representations/references are not automatically taken up (Ch 9.1.4) and you dont know the one that would be accepted.

Pls note that once you are british, you husband can immediately apply for citizenship without having to wait for 12 months on PR***

I later rang HO and requested a call back which they honoured it in 2hrs time. HO case worker asked why I was ringing and I demanded to know why they should send back some of my documents (about 40%) and retain some (about 60%); she then told me that they were required to make a decision on my case. I asked her how long it could take to get a decision and she said: sometimes it could take up to 6 months with a very soft voice. At that point I knew my application would be successful. I quickly retorted that I wanted to be sure that those documents were in safe hands and not lost - if lost, then so I could raise a loss action.

She maintained they needed them for decision so I said 'no worries because I thought its lost in transit given the cost of postage. I thanked her for the call back and that was it.

Hope this helps

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Re: MN1 section 3(1) application refused

Post by BIG Dobby » Tue Dec 20, 2016 8:58 pm

noajthan wrote:Good points.



And well worth noting:
9.17.12
An application which falls outside these criteria should not normally be approved, even if there are British citizen siblings or siblings with entitlements to registration as a British citizen, unless we are satisfied that registration would be in the child's best interests.
https://www.gov.uk/government/uploads/s ... 150402.pdf

What the guidance meant is the sole criterion that they expect one of the parents/guardian to be British and nothing more as there are instances where minors could become BC when one/both parents either settled or not; hence, children born outside d uk who are part of same family tree cannot benefit from their BC siblings as their parents are not BC themselves.

Other compelling circumstances are minor pursuing careers in e.g. Armed forces etc or who have spent most of their life here - they may overlook parent's BC in those instances

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