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need for a dependant visa for UK born child

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vinny
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need for a dependant visa for UK born child

Post by vinny » Tue Jul 01, 2008 11:48 pm

If your non-Brirish child (A277, A280(b), 304-309) is not travelling, then you do not need to make an immigration application for leave to remain for her/him (Section 4a - Children born in the United Kingdom who are not British Citizens).
Section 4a - Children born in the United Kingdom who are not British Citizens wrote:1. INTRODUCTION
....
This section relates to children born in the United Kingdom on or after 1 January 1983 who are not British citizens because, at the time of their birth, neither of their parents was a British citizen or settled here. Such children do not have the right of abode and are subject to immigration control. They are not here unlawfully, however, and are not required to apply for leave to remain (see ANNEX P, paragraph 11 if further guidance is required on this point)...
See also Dependants and former dependants > 8. Children born in the UK

Children born in the UK, who are not British, are not illegal entrants because they have not entered unlawfully (35-50). If they have not applied for leave to enter/remain in the UK, then they are not overstayers nor in breach of immigration laws or conditions of leave because they do not have any conditions to breach; in principle, therefore, they may remain in the UK indefinitely!

You may wait and include her/him in your extension or settlement (except under long residence) applications; child may also apply under A277, A280(b), 304-309; OR immediately after a parent is granted settlement/PR, their child is entitled to register for British citizenship (Section 1(3)), irrespective of child's immigration status.

However, a child with leave may become an overstayer, with associated problems.

Applicants, aged 10 or over, who are registering for British citizenship, are subject to the Good Character requirements.

Update: immigration Health surcharge. An alternative is to get adequate health insurance cover for child?

Else, if s/he is travelling, then see also New Born Baby - VISA stamping.

See also Birth to five.
Last edited by vinny on Wed Mar 21, 2012 9:38 pm, edited 37 times in total.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

vinny
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Posts: 28301
Joined: Tue Sep 25, 2007 7:58 pm

Re: need for a dependant visa for UK born child

Post by vinny » Fri Mar 03, 2017 9:12 pm

Chapter 8: family members transitional arrangements wrote:12.5. Applications for leave to enter or remain as a child who is born in the UK but is not a British Citizen, or for indefinite leave to enter or remain as an adopted child or as a child being admitted for the purpose of adoption, remain subject to paragraphs 304 to 313 of Part 8 of the Immigration Rules, regardless of the date of application.
...
14. Contact for Further Information
This guidance is owned by the Family Policy Team.
Any queries should be directed to FamilyOpsPolicy@homeoffice.gsi.gov.uk
Statement of changes to the Immigration Rules: HC535, 29 October 2015 wrote:Changes to Part 8

8.1 In paragraph A280(b), in the table, in the entry for paragraphs 297-300 in the column headed “Additional requirement”, for “None” substitute: “Where the applicant falls under paragraph 297, the applicant must not fall for refusal under paragraph S-EC.1.9. of Appendix FM in respect of a parent of the applicant. For these purposes, “a parent of the applicant” is to be construed as including “a relative of the applicant” under paragraph 297.”.

8.2 In paragraph A280(b), in the table, in the entry for paragraphs 304-309 in the column headed “Additional requirement”, for “None” substitute: “Where the applicant falls under paragraph 305, the applicant must not fall for refusal under paragraph S-EC.1.9. of Appendix FM in respect of a parent of the applicant.”.
Statement of changes to the Immigration Rules: HC535, 29 October 2015 wrote:Changes to Appendix FM

FM1. In paragraph S-EC.1.1. for “1.8.” substitute “1.9.”.

FM2. After paragraph S-EC.1.8. insert:
“S-EC.1.9. The Secretary of State considers that the applicant’s parent or parent’s partner poses a risk to the applicant. That person may be considered to pose a risk to the applicant if, for example, they –
(a) have a conviction as an adult, whether in the UK or overseas, for an offence against a child;
(b) are a registered sex offender and have failed to comply with any notification requirements; or
(c) are required to comply with a sexual risk order made under the Anti-Social Behaviour, Crime and Policing Act 2014 and have failed to do so.”.
Statement of changes to the Immigration Rules: HC535, 29 October 2015 wrote:EXPLANATORY MEMORANDUM TO
THE STATEMENT OF CHANGES IN IMMIGRATION RULES PRESENTED TO PARLIAMENT ON 29 OCTOBER 2015 (HC 535)
...
4.14. The changes to Part 8 and Appendix FM set out in paragraphs 8.1 to 8.2 and FM1 to FM8 of this statement shall take effect from 19 November 2015 and apply to all applications decided on or after that date regardless of the date of application.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

vinny
Moderator
Posts: 28301
Joined: Tue Sep 25, 2007 7:58 pm

Re: need for a dependant visa for UK born child

Post by vinny » Sun Apr 02, 2017 12:13 am

Transitional provisions and interaction between Part 8, Appendix FM and Appendix FM-SE wrote:A277 From 9 July 2012 Appendix FM will apply to all applications to which Part 8 of these rules applied on or before 8 July 2012 except where the provisions of Part 8 are preserved and continue to apply, as set out in paragraphs A280 to A280B.

A277A. Where the Secretary of State is considering an application for limited leave to remain or indefinite leave to remain to which Part 8 of these rules continues to apply (excluding an application from a family member of a Relevant Points Based System Migrant), and where the applicant:

(a) does not meet the requirements of Part 8 for indefinite leave to remain, (where the application is for indefinite leave to remain) and

(b) meets or continues to meet the requirements for limited leave to remain under Part 8 in force at the date of decision,

subject to compliance with any requirement notified under paragraph A277D(b), further limited leave to remain under Part 8 may be granted of such a period and subject to such conditions as the Secretary of State deems appropriate. For the purposes of this sub-paragraph an applicant last granted limited leave to enter under Part 8 will be considered as if they had last been granted limited leave to remain under Part 8; or

(c) if the applicant does not meet the requirements of Part 8 for indefinite leave to remain as a bereaved partner (where the application is for indefinite leave to remain as a bereaved partner) only because paragraph 322(1C)(iii) or 322(1C)(iv) of these rules applies, the applicant will (subject to compliance with any requirement notified under paragraph A277D(b)) be granted limited leave to remain under Part 8 for a period not exceeding 30 months and subject to such conditions as the Secretary of State deems appropriate.

A277B. Where the Secretary of State is considering an application for limited leave to remain or indefinite leave to remain to which Part 8 of these rules continues to apply (excluding an application from a family member of a Relevant Points Based System Migrant , from a victim of domestic violence or from a bereaved spouse, civil partner, unmarried partner or same sex partner) and where the application does not meet the requirements for indefinite leave to remain (where the application is for indefinite leave to remain) or limited leave to remain under Part 8 in force at the date of decision:

(a) the application will also be considered under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d), R-LTRC.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules;

(b) if the applicant meets the requirements for leave under those paragraphs of Appendix FM or paragraphs 276ADE to 276DH (except the requirement for a valid application under that route), the applicant will (subject to compliance with any requirement notified under paragraph A277D(b)) be granted leave under those provisions; and

(c) if the applicant is granted leave under those provisions, the period of the applicant’s continuous leave under Part 8 at the date of application will be counted towards the period of continuous leave which must be completed before the applicant can apply for indefinite leave to remain under paragraph 276B.

A277C. Subject to paragraphs A277 to A280B, paragraph 276A0 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State deems it appropriate, the Secretary of State will consider any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d), R-LTRC.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraph 276ADE(1) (private life) of these rules. If the applicant meets the requirements for leave under those provisions (except the requirement for a valid application), the applicant will be granted leave under paragraph D-LTRP.1.2., D-LTRPT.1.2. or D-LTRC.1.1. of Appendix FM or under paragraph 276BE(1) of these rules.

A277D. Where, pursuant to paragraphs A277A to A277C, a person who has made an application for indefinite leave to remain to which Part 8 of these rules continues to apply does not meet the requirements for indefinite leave to remain but falls to be granted limited leave to remain under Part 8, paragraphs 276ADE(1) to 276DH or Appendix FM, or outside the rules on Article 8 grounds:

(a) The Secretary of State will treat that application for indefinite leave to remain as an application for limited leave to remain;
(b) The Secretary of State will notify the applicant in writing of any requirement to pay an immigration health charge under the Immigration (Health Charge) Order 2015; and
(c) If there is such a requirement and that requirement is not met, the application for limited leave to remain will be invalid and the Secretary of State will not refund any application fee paid in respect of the application for indefinite leave to remain.
Let "family member of a Relevant PBS migrant" = "fm-PBS"

IMHO, A277A and A277B cannot exclude a fm-PBS from being subject to Part 8 in general, because the rules for fm-PBS are also contained in Part 8. Therefore, it follows that fm-PBSs are only excluded from A277A and A277B themselves. That is, only A277A and A277B are not applicable to fm-PBSs. A277C does not exclude fm-PBSs.

If A277A and A277B and A277C are sub paragraphs of A277, then there exists at least one sub paragraph, A277C, where fm-PBSs are not excluded. However,
A277C. wrote:Subject to paragraphs A277 to A280B,
implies A277C is not a sub paragraph of A277? Else, A277 may be subject to A277C and not the other way round. Therefore, neither A277A nor A277B are sub paragraphs of A277.

Therefore, in both cases where A277A and A277B are or are not sub paragraphs of A277, fm-PBSs are not excluded from A277.

Hence, in particular, there appears to be nothing to suggest that an eligible fm-PBS is excluded from A277, A280(b) and 304-309. There may be multiple applicable rules.

If I'm wrong in the above analysis, then who born in the UK would be subject to A277, A280(b) and 304-309?

Opinions welcomed here.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

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