Cannot include newborn baby to ILR application? Help please!

Dear All,

I have been holding Tier 2 General visa (my partner on T2 dependent visa) for 5 years, and we are going to apply for ILR soon.

About two years ago, we had a child (she was born in the UK). We didn't apply for a T2 dependent visa for her (we wanted to include her in ILR application directly). We recently applied for a non-British passport for her, as our plan was to include her in our ILR application so she will obtain an ILR with us.

However, today we were shocked to learn from the UKBA helpline that we cannot include her as a dependent in our ILR application, as she is currently not on a T2 dependent visa.

And I was told by the UKBA helpline that I have two options now:
1) Go ahead and apply for ILR for us two, and then apply for ILR for the child
2) Wait till we have ILR then apply for citizenship for the child.

Because of family reason (illness), we will have to travel as soon as possible back to our home country, so we cannot really afford waiting any longer.

So in summary: my partner and I have both valid T2 General visa for 5 years. Our child was born in the UK, but has no T2 dependent visa.

Can anyone with any experience on this matter please confirm if this is indeed true (i.e. we cannot include our child, who was born in the UK but does not have T2 dependent visa, in our ILR application)?

Thank you very much in advance.

Regards
D

No need for UK born child to apply for leave. Child is entitled to register for British citizenship immediately after a parent is granted ILR.

vinny wrote:No need for UK born child to apply for leave. Child is entitled to register for British citizenship immediately after a parent is granted ILR.

OP states that they have urgent travel so likely not an option to wait for MN1.

vinny wrote:No need for UK born child to apply for leave. Child is entitled to register for British citizenship immediately after a parent is granted ILR.

Hi Vinny,

Thanks for your reply. I understand that my child can apply for British Citizenship once I get ILR. However, that will take more time than including my child in our ILR application (in order for her to travel with us asap). The time is the primary concern for us now.

I guess the question now is: Can we include our child in our ILR application if she is not currently on T2 dependent visa? The answer from UKBA helpline is, unfortunately, NO, which does not make too much sense tbh.

Thanks,
D

CR001 wrote:

vinny wrote:No need for UK born child to apply for leave. Child is entitled to register for British citizenship immediately after a parent is granted ILR.

OP states that they have urgent travel so likely not an option to wait for MN1.

Hi CR001,

Thanks for your reply.

yes, that is precisely the point.

Any thoughts on this please?

Regards
D

The child will qualify for ILR under Paragraph 305 of the Immigration rules, once you have ILR or at any time.

The Telephonist is wrong to say you cannot apply at the same time.

Obie wrote:The child will qualify for ILR under Paragraph 305 of the Immigration rules, once you have ILR or at any time.

The Telephonist is wrong to say you cannot apply at the same time.

Thank you for this very useful information - although I never had any luck in arguing with immigration officer or UKBA telephonist on anything....

If we indeed can, I assume on the ILR form we need to leave the BRP number for the child dependent blank?

I am quite worried about this, because if we made the premium service appointment and they said my child cannot apply with us, it is almost 2000 pounds wasted....

Obie is correct. Print out A280(b), 304-309 for the caseworker.

Well all I can do is assist members by clarifying what the law says.

We are all bound by the law of the land.

I cannot guarantee you what case worker will do.

All I can say is that as a matter of law, your child will qualify for ILR at the same time as you.

If UK VI fails to apply the law to a particular case, there are procedures in place for dealing with that.

Obie wrote:Well all I can do is assist members by clarifying what the law says.

We are all bound by the law of the land.

I cannot guarantee you what case worker will do.

All I can say is that as a matter of law, your child will qualify for ILR at the same time as you.

If UK VI fails to apply the law to a particular case, there are procedures in place for dealing with that.

Thank you, Obie. I made a few other calls, and two out of 6 said I can. I will go ahead and make the booking.

Thanks.
D

Well this demonstrate the abysmal state of British Immigration Legal advise system if only a third of people agree with the legal position I espoused.

Strange .

Don't rely on telephone conversations nor correspondence.

Rely on the Immigration rules.

Anyone pleeeeeeease help!

I am now at the premium visa center and was told by the officer who checked my documents that my child cannot apply with me. WTF!!!!!!!

She is passing the case to the caseworker, but told me I may be refused to continue. I am so worried.

I told her about the immigration law and showed her the clauses. She still doesn't believe me.

What can I do????

vinny wrote:Obie is correct. Print out A280(b), 304-309 for the caseworker.

Did you do this as vinny suggested??? If it is in the rules, HO must accept it, it is their rules.

CR001 wrote:

vinny wrote:Obie is correct. Print out A280(b), 304-309 for the caseworker.

Did you do this as vinny suggested???

They didn't want that and removed it from the documents I prepared.

I showed her the 305 clauses, she still does not believe me.

I am just worried that I do not have the chance to actually talk to the caseworker before our case is rejected.

Anyone knows if there is any issue with our application do we have the opportunity to see the caseworker and explain?

Deislermilan wrote:

CR001 wrote:

vinny wrote:Obie is correct. Print out A280(b), 304-309 for the caseworker.

Did you do this as vinny suggested???

They didn't want that and removed it from the documents I prepared.

The person who removed the documents was highly irresponsible.

Deislermilan wrote:I showed her the 305 clauses, she still does not believe me.

Was English not her first language?

Syed, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1059 (07 September 2011) wrote:It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

@Deislermilan

My sympathies and empathizes are with you! I got a child of the same age but i am waiting to get ILR first.

The reality is these case worker never ever listened to what you said to them. I have seen this and it's my personal experience even these case worker will accept there mistake in appeal but in person NO to everyone.
Who is there to stop or question them? No one ...

Hope something positive would have happened.

Good luck ...

When I talked to her about the law clauses, her colleague came and explained to me why she cannot apply.

I said she didn't need a visa to stay in the U.K. Because she was born in the U.K. Then they asked me, why do you apply for an ILR for her then? I then explained that getting ILR is for her to leave and come back to this country. Then they told me this makes no sense at all.

I knew I cannot argue with them, so I am waiting to see if I can see the caseworker in the end.

akhr90 wrote:@Deislermilan

My sympathies and empathizes are with you! I got a child of the same age but i am waiting to get ILR first.

The reality is these case worker never ever listened to what you said to them. I have seen this and it's my personal experience even these case worker will accept there mistake in appeal but in person NO to everyone.
Who is there to stop or question them? No one ...

Hope something positive would have happened.

Good luck ...

I am speechless now really....... I don't know what to do....

Any reply from them?

Well if they don't accept your child ILR at least they should consider your application!!

Perhaps they may refer to their transitional provisions (12.5) and instructions for clarification.

Jot got back home.

My application was successful. After my documents were sent to the caseworker's office, it took only ~20mins to get a decision. And I was not asked to meet the caseworker, which means that it is an obvious thing, although rare, for the caseworker.

When I got the decision letter from the same person, he still thought I was just lucky. I just smiled off and left.

I would like to thank all of you for you kind advice and support. Much appreciated.

Regards
D

Well it is good that all went well.

I am a strong believer in the notion that the law always prevail, and must be seen to prevail.

Glad everything went well in the end. Most caseworkers like lawyer clearly don't know what they are doing.

Obie wrote:Well it is good that all went well.

I am a strong believer in the notion that the law always prevail, and must be seen to prevail.

Glad everything went well in the end.

Ditto.

Obie wrote:Most caseworkers like lawyer clearly don't know what they are doing.

Unsurprised.

However, pleased that your caseworker knew what he or she was doing.

Congrats ... It is indeed a big relief.

And did your child got an ILR as well or not?