Child`s immigration status

I hope some of the experience members on this forum can help with this situation. I am asking this on behalf of a next door neighbour. The guy is a non-eea and married to eea member in 20th november,2003.He applied for PR in 10th Dec,2008 which means that he acquired PR automatically on 20th November,2008. The guy and his eea member unfortunately do not have any child but the guy has a child born in UK with another woman on 15th September,2009.The guy`s PR has been refused last month by HO because the eea member is refusing to help the guy for obvious reason, that is infidelity.The guy and his eea member are still together trying to work things out but she is refusing to assist her husband to acquire his PR.The question I am asking is
(1) What is the immigration status of the child born to this guy since he acquired PR automatically on 20th November, 2008 before his son was born.? British by birth ?The guy`s name is on the child`s birth certificate. The mother of the child is an irregular immigrant
(2) Can the guy apply british passport for the son based on the fact that he acquired his PR automatically on 20th November ,2008 before the child was born,although his PR has been refused because of the wife(eea member ) refusing to assist him.The guy is appealing against the decision,the date is yet to be fixed by AIT.
(3)If the guy is going to apply british passport for the son how can he prove to the passport office that he acquired PR automatically on 20th November,2008 although HO has refused to confirm his PR.The HO is holding to the guy`s passport so he cannot send his passport to support the child`s british passport application.Hoping to hear your views on this matter.

I think the problem is that in order to issue a British Passport to the child the Passport Agency will want to see proof that the father is "settled" in the UK. But with the EEA4 application having been refused I think they would be perfectly entitled to reject the passport application.

Of course if he wins the appeal, it would be oh so different.

John on technical grounds the guy acquired the PR automatically according to eea regulations,the endorsement on the passport by HO is just a confirmation but not confering the rights the guy has under eea rules. In case the guy wins the appeal is it right to say that the child is british by birth or the child needs to be registered using the MN1 as the case may be. I understand the situation is a little bit dicey but if eea regulations are followed strictly then the guy has a point with regards to the child being british by birth and therefore has right to BP.The guy is "settled " in UK by all standards it is just that there are so many red tapes at HO denying him his right.It is a grey area but the guy has a point.

Yes he has a point, but so would the Passport Agency if they refused the child's passport application. After all the EEA4 application has been refused.

So what is the child`s status now? Nothing or british by birth?

troubled wrote:So what is the child`s status now? Nothing or british by birth?

Surely, the child has acquired the mother's nationality automatically?

Also, could well have acquired the father's nationality.

The child was not born to the eea member but another woman whose immigration status is yet be regularised. So the child cannot acquire the status of the mother so far his UK immigration status is conerned

troubled wrote:The child was not born to the eea member but another woman whose immigration status is yet be regularised. So the child cannot acquire the status of the mother so far his UK immigration status is conerned

Regardless of her UK immigration status, she is still a citizen of the country from where she came! You asked whether the child was 'British or nothing'! That's why I mentioned the mother's nationality.

I am interested in the child being registered as british citizen.You might have misunderstood my question.I should have been more clearer.

troubled wrote:I am interested in the child being registered as british citizen.You might have misunderstood my question.I should have been more clearer.

With the father's PR in question, the child's British nationality hangs 'in question' too! The best is for the dad to sort out his PR issue, then yes, the child's British passport may be applied for.

I think with my little understaning if the father wins the appeal ,then the child could be classified as british by birth, then british passport could be applied straight away without registering the child as the case should have been.Though thanks for your constructive contributions.

That statement would have been right if the child was born after PR was issued. But beacuse, it was after, the child is not a Brit until after a successful registration application. Incidentally , i would say, if that is any comfort, that the Registration will be, Registration by entitlement, and not at Secretary of States discretion

The problem, Obie, is that it is a question of showing EU Treaty Rights have been exercised as required, and someone has to decide whether that is the case, or not. That need to decide is exercised by the Secretary of State, or rather by UKBA on behalf of the Secretary of State.

The decision, at the moment .... rightly or wrongly .... is that Treaty Rights have not been exercised as required. An appeal might change that decision.

In my opinion, until that is resolved favourably, there is no way the Passport Agency will issue a British passport to the child.

Obie then what is the point of that eea regulation that PR is acquired automatically five years of exercising treaty in accordance with regulation.The child was born when in theory or on technical grounds the father has acquired PR on 20th Nov,2008 but not confirmed. I am told that endorsement is just confirmation of those rights but not giving you the rights.I think that portion of eea regulation is not followed properly by HO.It will be nice a case in court on how the judges will interpret that if father decides to pursue the case is in court.

Now i get the picture. I thought the child was born before PR was obtained, or before a claim was made by the qualifying parent, as to an automatic entitlement of the same .

The problem in this case is that, the individual in question has been refused PR. Therefore it will be safe to assume, that wrongly or rightly the homeoffice are of the belief he has not met the condition for PR to be issued.

There is no compulsoryrequirement that one has to apply for PR for their child to be able to acquire British Passport, but as the father has been refused PR, i am pretty sure, the passport office would rightly say, he does not meet the requirement, and hence the child cannot qualify for British Citizenship at birth.

Had this not been the case, you could have just sent 5 years of treaty rights with EEA partner, and/or evidence of retention of right of residence, and child would qualify.

As there has been a refusal, the matter would need to be resolved, before the child could be recognised as a British Citizen.

I understand your frustration trouble, but you have to be aware that the UKBA, has wrongly or rightly set conditions in the EEA regulation for acquisation of PR, and if those conditions are not met, the person will not qualify for PR, even if the have been living for 5 years on a lawful capacity in the UK with a residence card.

In 2007, it used to be the resident card holder that was required to show evidence of 5 years residence, from 2008-9, they are required to show their EEA spouse of family member has too.

Thank you for your contribution.The father is appealing against the decision so lets wait the outcome and see where the matter goes.

Hi Troubled,
Has the chids fathers appea been heard and if yes what was outcome.What about the child too........?
Thanks

nanaaddo80 wrote:Hi Troubled,
Has the chids fathers appea been heard and if yes what was outcome.What about the child too........?
Thanks

The child`s father won his appeal,issued with PR so he intends to register the child.