Re: MN1 section 3(1) application refused

satish333 wrote:Hi there,
My kids MN1, section 3(1), application is refused by home office.

Home office letter says..

The registration of minors under this provision is at the secretary of state's discretion. Normally a minor will not be registred if, as appears in this case, he/she is not 'settled' in the UK as defined by immigration laws. A minor who is, or is the dependant of, a EEA national is not 'settled' in the UK until he/she has either been granted indefinte leave to remain here or acquired permanent residence under EU law, neither of which is so at present. The application has neverthless, been carefully considered to see whether there were sufficient grounds for treating it exceptionally. However, suffient grounds could not be found to exercise discretion in this case. The application has therefore been refused

We met all the required criteria as below :

1. I am a british citizen ( by naturalisation)
2. my wife on ILR
3. kids completed 2 years residence in UK
4. Kids are on depended visa. we have NOT applied ILR for them as this is NOT required if they meet other criteria as stated below in

SECTION 3(1) CHAPTER 9.17.24, CHAPTER 9.17.25 AND CHAPTER 9.17.26 OF VOLUME ONE (1) OF THE BRITISH NATIONALITY ACT 1981 ARE AS FOLLOWS:

https://www.gov.uk/government/uploads/s ... apter9.pdf

Conditions of stay
--------------------
9.17.24 We should normally expect a minor to be free of conditions of stay because the future of a child whose stay is restricted does not clearly lie here (see 9.17.2). Registering a minor who is on conditions has the effect of cancelling their conditions because, on becoming a British citizen, the minor would cease to be subject to immigration control.

9.17.25 We should therefore normally refuse an application for the registration of a minor whose stay in the United Kingdom is restricted to a specific period.

9.17.26 But if one or both parents are British citizens who have come to the United Kingdom to live permanently, then this may be less important, if:

a) the minor meets the other normal criteria for registration set out in 9.17; and

b) the parents meet the criteria set out in 9.17.9-9.17.14 above, then we should consider whether registration would be
appropriate.

I clearly mentioned the above quotes in my MN1 application. It seems the case worker did not bother to look at it at all.
I thought of taking this to tribunal. But home office letter says, I can NOT appeal against them.

Please advise how to proceed with this now. Another thing is my kids depended visa is now expired.

Please help.

Raj

You need to challenge it; HO decision was totally wrong

BIG Dobby wrote:

satish333 wrote:Hi there,
My kids MN1, section 3(1), application is refused by home office.

Home office letter says..

The registration of minors under this provision is at the secretary of state's discretion. Normally a minor will not be registred if, as appears in this case, he/she is not 'settled' in the UK as defined by immigration laws. A minor who is, or is the dependant of, a EEA national is not 'settled' in the UK until he/she has either been granted indefinte leave to remain here or acquired permanent residence under EU law, neither of which is so at present. The application has neverthless, been carefully considered to see whether there were sufficient grounds for treating it exceptionally. However, suffient grounds could not be found to exercise discretion in this case. The application has therefore been refused

We met all the required criteria as below :

1. I am a british citizen ( by naturalisation)
2. my wife on ILR
3. kids completed 2 years residence in UK
4. Kids are on depended visa. we have NOT applied ILR for them as this is NOT required if they meet other criteria as stated below in

SECTION 3(1) CHAPTER 9.17.24, CHAPTER 9.17.25 AND CHAPTER 9.17.26 OF VOLUME ONE (1) OF THE BRITISH NATIONALITY ACT 1981 ARE AS FOLLOWS:

https://www.gov.uk/government/uploads/s ... apter9.pdf

Conditions of stay
--------------------
9.17.24 We should normally expect a minor to be free of conditions of stay because the future of a child whose stay is restricted does not clearly lie here (see 9.17.2). Registering a minor who is on conditions has the effect of cancelling their conditions because, on becoming a British citizen, the minor would cease to be subject to immigration control.

9.17.25 We should therefore normally refuse an application for the registration of a minor whose stay in the United Kingdom is restricted to a specific period.

9.17.26 But if one or both parents are British citizens who have come to the United Kingdom to live permanently, then this may be less important, if:

a) the minor meets the other normal criteria for registration set out in 9.17; and

b) the parents meet the criteria set out in 9.17.9-9.17.14 above, then we should consider whether registration would be
appropriate.

I clearly mentioned the above quotes in my MN1 application. It seems the case worker did not bother to look at it at all.
I thought of taking this to tribunal. But home office letter says, I can NOT appeal against them.

Please advise how to proceed with this now. Another thing is my kids depended visa is now expired.

Please help.

Raj

You need to challenge it; HO decision was totally wrong

Why have you resurrected an old post from 2012? satish333 hasn't logged on to the forum for 12 months!

Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

alladin wrote:Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

There is no timeline or set timeframe for HO to process reconsiderations. They will take as long as they deem necessary.

CR001 wrote:

alladin wrote:Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

There is no timeline or set timeframe for HO to process reconsiderations. They will take as long as they deem necessary.

Thanks for your reply. If I want to challenge their decision (via JR), can I do it now (even though a reconsideration request is made) or has it become time-barred as I received the decision in Dec, 2015?

alladin wrote:

CR001 wrote:

alladin wrote:Does anyone know timeline for reconsideration as I am waiting for the result? As I understand, they dont have a timeline but is it correct?

There is no timeline or set timeframe for HO to process reconsiderations. They will take as long as they deem necessary.

Thanks for your reply. If I want to challenge their decision (via JR), can I do it now (even though a reconsideration request is made) or has it become time-barred as I received the decision in Dec, 2015?

Is your topic related to an MN1 refusal?

It might be beneficial if you post your own topic, reason for refusal etc, rather than just tag on in a sticky thread.

CR001 wrote:It might be beneficial if you post your own topic, reason for refusal etc, rather than just tag on in a sticky thread.

Thanks. My case is discussed in this topic itself (please see previous posts). Basically I applied for my daughters naturalisation under Section 3 (1) as myself being BC and my wife having ILR but was refused on Dec, 2015.

alladin wrote:

CR001 wrote:It might be beneficial if you post your own topic, reason for refusal etc, rather than just tag on in a sticky thread.

Thanks. My case is discussed in this topic itself (please see previous posts). Basically I applied for my daughters naturalisation under Section 3 (1) as myself being BC and my wife having ILR but was refused on Dec, 2015.

JR is very expensive. If you have that much money to spend, then ILR and then BC would probably cost less.

Alladin,

My candid advice is to approach a solicitor since it has lingered for more than 6 months to get a response from HO. Once a pre-action protocol is issued wrt your child's application, I swear HO will release her certificate because they cant successfully challenge it in JR. I Know 2 cases right now

I dont know where you are based but there are charities that represent children in Britain... Look for one or in Leeds, there are solicitors that charge £500 to £900 to start the process. Basically, why your daughter was refused was mainly because you have no other british child(ren) at the time time of application; so the strength of the ties in the UK was not considered very strong - even though, length of residence is less important for applicants < 10yrs as they claimed.

Those solicitors will assess your circumstances, once there is a strong conviction then it will be challenged! when you come out successful, you will get all you money back except application fee. DO NOT CHICKEN OUT...

You should make a case asap before she turns 10... Dont wait... U will n MUST surely triumph.

The only certainty (as per the relevant statute) is that registration of a foreign-born child is at the Home Secretary's discretion.

In some cases (for example, when the child is not settled and thus free from immigration time restrictions) this can mean discretion on discretion on discretion.

Even a British sibling will not necessarily seal it.

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

It's hard to see the logic behind a conviction that threats of a PAP or JR will turn discretion into entitlement.

just to update, the above was granted under Section 3(1).

You made a wise decision to get her ILR, especially getting the application in before her visa expiry. That's almost certainly what tipped the reconsideration request in her favor. Congrats.

alladin wrote:just to update, the above was granted under Section 3(1).

Congrats bro. I think nothing tipped it to your favour except that the application was wrongfully refused. Good character kicks in at the age of 10; hence, being overstayer is out of the question as your daughter is 7.

thumbs up for the good news

Mine is pending...

I got a refund of the reconsideration fee for the reconsideration request I made on Feb (the history of my case is described above). Does anyone know if this happens if the reconsideration is successful?

No. You pay and they keep the reconsideration fee iregards of the success. In your case, since you made the correct valid application within the validity of your child's visa, and the ILR was subsequently granted, the reconsideration request became a moot point. No need to even process it, so they just returned the fee. Nice of them really, considering you'd already been refused, they perhaps didn't have to do that. You made a wise and timely move.

ouflak1 wrote:No. You pay and they keep the reconsideration fee iregards of the success. In your case, since you made the correct valid application within the validity of your child's visa, and the ILR was subsequently granted, the reconsideration request became a moot point. No need to even process it, so they just returned the fee. Nice of them really, considering you'd already been refused, they perhaps didn't have to do that. You made a wise and timely move.

Thanks for responding. The subsequent granting of naturalization (Naturalization certificate was issued under Section 3(1)) within 1 month does seem to suggest that they did consider the Section 3 (1) application again. I did not apply for naturalization after my daughter recieved her ILR.

hi alladin
ca you share covering letter which you send for reconsideration of mn1.
did u sent ilr copy to citizenship deptt during reconsideration process.
ALI

Hi Ali,

I didnot use any covering letter as such. I did mention the facts on the prescribed form (NR) and asserted that the decision was not in line with the issued guidance (citing the relevant parts of the guidance).

cheers,
alladin.

alladin wrote:

ouflak1 wrote:No. You pay and they keep the reconsideration fee iregards of the success. In your case, since you made the correct valid application within the validity of your child's visa, and the ILR was subsequently granted, the reconsideration request became a moot point. No need to even process it, so they just returned the fee. Nice of them really, considering you'd already been refused, they perhaps didn't have to do that. You made a wise and timely move.

Thanks for responding. The subsequent granting of naturalization (Naturalization certificate was issued under Section 3(1)) within 1 month does seem to suggest that they did consider the Section 3 (1) application again. I did not apply for naturalization after my daughter recieved her ILR.

I think maybe my wording wasn't clear. So here is the timeline I suspect happened, and is the reason why your reconsideration fee was refunded.

• 1. You applied for registration under 3(1) for a child born outside of the UK who did not have ILR, but did have an existing visa.
  2. The registration was refused.
  3. You applied for reconsideration.
  4. Before your child's visa expired, you applied for their ILR.
  5. The case worker who got your child's ILR application saw that you had a reconsideration request pending.
  6. They processed the application and subsequently granted your child ILR.
  7. The department that handles registrations was notified of this and they decided there was no need to proceed with your reconsideration request since the child now qualified for registration under 3(1).
  8. Your childs initial registration request was granted.
  9. Your reconsideration fee was refunded and the case was closed.

This is a bit speculative. I don't know what happened. But this is what I suspect basically happened.

alladin wrote:I got a refund of the reconsideration fee for the reconsideration request I made on Feb (the history of my case is described above). Does anyone know if this happens if the reconsideration is successful?

Yes. I believe you can only get a full refund when your reconsideration request is successful. A child does not necessarily need ILR provided one of parents is a BC. I do not encourage anyone to follow my footsteps, period.

BIG Dobby.
Please can you direct me to any law firm or legal person that can take this kind of the case to a success .

Thanks in advance.