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Regularizing status of a child: Which Form to use?

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Mata
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Regularizing status of a child: Which Form to use?

Post by Mata » Mon Mar 23, 2015 1:58 pm

I am a bit confused on which form should be used to regularize the status of a child aged 10 who is an overstayer. She was born in Kenya (she is Kenyan) and came into the UK five years ago with a visitor visa to visit her mother. She has not gone back to Kenya since then. Her mother also originally a Kenyan is now a British citizen by naturalization. She recently had another child who is British. She has sole responsibility of these children. The father of the older child is basically unknown to her.

The mother wants to regularize the status of the child, but it is not clear which form should be used. Have checked FLR(FP) but this seems to be for applications for leave to remain in the UK on the basis of family life as a partner or parent or on the basis of private life in the UK. Technically, it seems as this form was designed for partners and parents' applicant and not for children' applicants.

On the gov website (https://www.gov.uk/remain-in-uk-family/eligibility), it says that if you’re a child you may be eligible to settle in the UK if your parents are settled. But I think this may not apply to oversatayer because one of the eligibility criteria for ILR is that you must have or have had permission to be in the UK. It also says that you can also check if you can apply as a family member, but again the link takes you back to the partner/parents routes.

Any suggestions which form should be used? If you can provide link to the form will be appreciated. Thanks.

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Re: Regularizing status of a child: Which Form to use?

Post by Obie » Mon Mar 23, 2015 2:03 pm

I believe Set LR will be the best.
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Re: Regularizing status of a child: Which Form to use?

Post by Mauser1905 » Mon Mar 23, 2015 2:04 pm

I believe there is a 7 year route for children.
Note that children above 10 year old will be checked for good character.

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Re: Regularizing status of a child: Which Form to use?

Post by Mata » Mon Mar 23, 2015 4:40 pm

Obie wrote:I believe Set LR will be the best.
Form SET(LR) is used for Long Residence applications. How this form can be used for a child who has not been in the UK for at least ten years?

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Re: Regularizing status of a child: Which Form to use?

Post by Mata » Mon Mar 23, 2015 4:42 pm

Mauser1905 wrote:I believe there is a 7 year route for children.
Yes, there is a 7 year route for children, but this particular child has been in the UK for less than 7 years.

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Re: Regularizing status of a child: Which Form to use?

Post by Mauser1905 » Mon Mar 23, 2015 5:00 pm

Mata wrote:
Mauser1905 wrote:I believe there is a 7 year route for children.
Yes, there is a 7 year route for children, but this particular child has been in the UK for less than 7 years.
But offcourse, has to wait till become eligible and then apply if no other option before then.

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Re: Regularizing status of a child: Which Form to use?

Post by Mata » Mon Mar 23, 2015 5:06 pm

Mauser1905 wrote:
Mata wrote:
Mauser1905 wrote:I believe there is a 7 year route for children.
Yes, there is a 7 year route for children, but this particular child has been in the UK for less than 7 years.
But offcourse, has to wait till become eligible and then apply if no other option before then.
Even if she qualified under the 7 year route for children, which form should be used?

Fom SET(F) seems to be the right one for her, but the Immigration Rules states that you must have or have had permission to be in the UK.

Does the phrase "have had permission to be in the UK" include children who had permission in the past but overstayed?

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Re: Regularizing status of a child: Which Form to use?

Post by Obie » Mon Mar 23, 2015 5:27 pm

Mata wrote:
Obie wrote:I believe Set LR will be the best.
Form SET(LR) is used for Long Residence applications. How this form can be used for a child who has not been in the UK for at least ten years?
You are absolutely correct. I meant to write SET(F) or SET(O).

The child does not appear to qualify under both Appendix FM or the rules.

Therefore representation has to be made on behalf of the child, as to why he or she should be given ILR.

At some point the parent could seek to register him or her under section 3(1) of the British Nationality act.
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Re: Regularizing status of a child: Which Form to use?

Post by Mauser1905 » Mon Mar 23, 2015 9:55 pm

To be honest, as Obie suggested Section 3(1) may be more appropriate. Yes I understand the child has overstayed however please see below which clears any questions:
Child's future lies in the UK
Child has established home in the UK.
Mother has naturalised and a British citizen with another child which stays with the elder sibling (applicant).
immigration rules violations are parent adult's responsibility and not child's choice/decision. (thus child can not be penalised for adult's decisions.)

Given tis Section 3(1) registration at discretion is best option rather trying to regularise the stay, IMHO.
Children in the United Kingdom

9.17.4
In most cases the child's future is straightforward and self-evident.

We should normally accept that the child meets this criterion if:

future intentions are confirmed on the application form; and

the residence criteria in 9.17.17-9.17.29 are met; and

the child has an established home here.

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.
9.17.27 If the minor is on restrictions but otherwise meets the normal criteria
for registration, we should consult the relevant immigration CMU to
see if they wish to remove restrictions. If they do not, we should
consider their reasons before deciding whether to approve or refuse
registration.

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Re: Regularizing status of a child: Which Form to use?

Post by Amber » Mon Mar 23, 2015 10:20 pm

The SoS has a legal duty to consider the child's best interest. The fact that the Child's Mother is solely responsible for the child, the Mother and Sister are both British should mean that a section 3(1) application is approved without the need for the child to have further leave. However, a stumbling block may be that, as the child has reached age 10, the Child must be of Good Character, recent changes to the guidance suggests that overstaying can be a bar. Whether section 55 Borders, Citizenship and Immigration Act 2009 outweighs this restriction will need consideration and possible challenge. However, I envisage that where the overstaying was as a result of the parent(s) inaction, this should not be held against the minor and should not be a reason to normally refuse an application.

It may be more advantageous to settle the child now.
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Re: Regularizing status of a child: Which Form to use?

Post by Mata » Tue Mar 24, 2015 12:10 am

Obie wrote: Therefore representation has to be made on behalf of the child, as to why he or she should be given ILR.

At some point the parent could seek to register him or her under section 3(1) of the British Nationality act.
Thanks Obie,

In your earlier posts in another thread (see http://www.immigrationboards.com/britis ... 77212.html), you seemed to have argued that the preferable option would be to apply for registration rather than ILR.

The person in that thread was earlier advised to apply for ILR first before registration, but decided to go for registration which was refused. The Home Office refusal letter stated that "Normally a minor will not be registered if, as appears in this case, he/she is not 'settled' in the UK as defined by immigration laws."

However, you challenged this arguing that "The only reason for refusing , is to get the parent to make an application for settlement, which in my view is unnecessary."

Nonetheless, I think the safer option would be to start with ILR, then if accepted to apply for registration at some point in the future.

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Re: Regularizing status of a child: Which Form to use?

Post by Obie » Tue Mar 24, 2015 12:24 am

I never quite said that, as I was responding to a refusal to register , and never first suggested that the easier option is to register.

I stand by what I said on that thread, but it will be wrong to suggest that I was the one that advised the OP in that thread to proceed with registration.

For the avoidance of doubt, i still believe the refusal was wholly flawed.
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Re: Regularizing status of a child: Which Form to use?

Post by Mata » Tue Mar 24, 2015 12:33 am

Amber wrote:It may be more advantageous to settle the child now.
Thanks Amber. I thinks I will advise them to apply for settlement. With regard to the appropriate form, I have narrowed down two forms:

1. Form SET(F), i.e. Application for Indefinite Leave To Remain In The UK as a Child Under the Age of 18; and
2. Form FLR(O) i.e, Application for leave to remain in the UK in a category not covered by other forms.

Taking into account that the child is 11 and has overstayed, which would be the more appropriate form to use between the two?

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Re: Regularizing status of a child: Which Form to use?

Post by Amber » Tue Mar 24, 2015 12:51 am

Assuming the requirements of 298 have been met, as appears to be the case, ILR should be granted. SET(F) would be the form.
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Re: Regularizing status of a child: Which Form to use?

Post by Mata » Tue Mar 24, 2015 1:22 am

Amber wrote:Assuming the requirements of 298 have been met, as appears to be the case, ILR should be granted. SET(F) would be the form.
She does meet all except 298(ii) which states that she has or has had limited leave to enter or remain in the UK, though I am not sure of the meaning of the phase in bold.

Also, not sure whether she will meet 298(iv) and (v) on accommodation and maintenance without recourse to public funds because her mother is at the end of her maternity leave and before that she was working on zero hour contract. The mother has contacted the her employer about resuming work soon but they have informed her that at the moment they don't have hours available for her, and will contact her, if any.

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Re: Regularizing status of a child: Which Form to use?

Post by vinny » Tue Mar 24, 2015 1:37 am

Mata wrote:came into the UK five years ago with a visitor visa to visit her mother.
Had limited leave as a visitor.
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Re: Regularizing status of a child: Which Form to use?

Post by Obie » Tue Mar 24, 2015 2:08 am

vinny wrote:
Mata wrote:came into the UK five years ago with a visitor visa to visit her mother.
Had limited leave as a visitor.
Vinny I am not sure in English language "had" and "has had' means the same thing though.

One seems like the past and the later is the present perfect.

If someone had leave 5 years ago, it is difficult for that to be described in English as "has had" it will be most appropriate to describe as "had".

If the intention of the rule was to cover the case of the OP, the draft man would have stated "has" or "had" leave to remain.

The use of "has had " indicates someone in receipt of leave, a short while ago. I have some difficulty in appreciating that it covers a child who had leave 5 years ago.
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Re: Regularizing status of a child: Which Form to use?

Post by Amber » Tue Mar 24, 2015 6:46 am

Leave to enter as a visitor should satisfy the requirement under 298, has had refers to leave at some point, it does not infer extant leave or leave recently. Bearing in mind section 55 of the 2009 Act, ILR should be granted.
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Re: Regularizing status of a child: Which Form to use?

Post by Obie » Tue Mar 24, 2015 10:46 am

Amber wrote:Leave to enter as a visitor should satisfy the requirement under 298, has had refers to leave at some point, it does not infer extant leave or leave recently. Bearing in mind section 55 of the 2009 Act, ILR should be granted.
Well "has had" does not preclude that a person has extant leave.

For example, I could say , " Jane has had leave in various categories in the 10 years preceding her settlement
Application.

Does that indicate that Jane does not have leave or required to have leave?

If I tell someone at home "mum "has had " dinner".

Could I really be suggesting the dinner mum had yesterday or 2 days ago. Clearly not ?

I don't intend to enter into a semantics exercise, but the drafting of the rules is loose and could be open to various interpretation.

I have no issues in accepting that section 55 is in play, and have no hesitation in concluding that Leave will be granted to the child .

However , I am not convinced it will be within the rules.

I accept the SOS will have to exercise the discretionary power conferred on her under the 1971 act, read in accordance with her section 55 duties to issue leave to the child.

I am content to go that far.
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Re: Regularizing status of a child: Which Form to use?

Post by Mauser1905 » Tue Mar 24, 2015 10:59 am

In my limited knowledge I would apply for Section 3(1) discretion as its in best interests of the child. In regards to good character above 10 years it should not be held against the minor who is not responsible for the decisions. Assuming that the only issue to be concerned of.

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Re: Regularizing status of a child: Which Form to use?

Post by Amber » Wed Mar 25, 2015 4:03 am

You need to read it in the whole sentence Obie, rather than separately.
has or has had limited leave to enter or remain in the United Kingdom
Has - meaning actively has leave now

Has had - meaning has had leave at some point

If has had leave was meant to say that leave was required now, it would be pointless putting it in, you would just put has leave. Remember, it's not talking about a specific category, it's just saying has had some kind of leave. At least that is how I read it.
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