ADVICE SOUGHT

I am a British citizen, my unmarried partner and i have a 18 month old baby boy ( born here in the uk ) with another baby due next year

My partner is not a british citzen she arrived in the UK 2003 and applied for asylum. Unfortunately asylum application was refused but she was granted 3 years Directionary Leave to Reamin on medical grounds.

On expiry of her Dicretionary Leave to Remain, i wrongly advised my parner to submit an application for extension of stay as an umarried partner of a person present and settled in UK Form FLR (M) . Not realising that could only submit this application if in UK on a visa i.e. limited leave to remain.

Anyway last month the Home Office refused the application,on the basis that she was previously granted Dicretionary Leave to Remain and no evidence that she had limited leave to remain in the UK.

We have submitted an appeal based upon wrong application,built family life together ,she is currently working and studying.Also will submit the correct application form HPDL and see if home office will reconsider

My finace and i had always wanted to marry ( prior to children) , and we intended this to happen next year in our local Anglican Church. We are now currently fixing a date.

Reading others posts on this very good website and similar cases on the internet appears we have to be prepared for perhaps further bad news

If bad news happens before or after we get married her in the UK and my finance is denied right to stay in uk ,any suggestions would be most appreciated , as you can imagine i am having sleepless nights

Aliga wrote:I am a British citizen, my unmarried partner and i have a 18 month old baby boy ( born here in the uk ) with another baby due next year

My partner is not a british citzen she arrived in the UK 2003 and applied for asylum. Unfortunately asylum application was refused but she was granted 3 years Directionary Leave to Reamin on medical grounds.

... My finace and i had always wanted to marry ( prior to children) , and we intended this to happen next year in our local Anglican Church. We are now currently fixing a date.

I can't help regarding visa issues, but you may be aware that because you are not married (and presumably are the father of the child) and your partner is not a British citizen or permanent resident, your child did not acquire British citizenship at birth.

As soon as you get married, your child will become British at that point. This would be automatic and no application for citizenship would be required.

HOWEVER, if you want your child to be a British citizen sooner than this, you can apply to the Home Office for him or her to be registered as a British citizen. Under policy, the Home Office will normally register the child of an unmarried father as a British citizen if the child would have been British had parents been married. And providing child is still under 18.

Cost is GBP200, you use form MN1 and processing time is about 2-3 months.

You also should know that your future child (to be born next year) will be British at birth automatically provided your name is shown on the birth certificate. Rules on the ability of unmarried British fathers to pass on citizenship changed with effect from 1 July 2006.

Good Afternon JAJ

Thanking so much for the advice in regards to my son and future child. I was indeed aware that the bizarre ruling that my son even though i am British is not and thus follows his mother ( my finance ) citizenship. Was also aware that on marriage then the child will in fact be British.

Was not however aware of the change in law in regards to children born after July 2006 to a British Father will be British at birth....bureaucacy gone mad !!

I feel the Home Office in trying to address its faults they are in turn taking it out on the genuine, innocent, easy targets i.e women and children. Instead of concentrating their efforts on capturing criminals etc. ( sorry that outburst makes me feel good )

Will download the MN1 form and discuss with my partner ( remembering that someone at the home office could still say no and there goes £200 down the drain )

But as i highlighted earlier our case could get very complicated i.e my partner denied right to stay in the UK with me as a family and as a hardworking individual . She has to return to her country ( heavily pregnant ). Ideally with my son ( and me for a couple of weeks at least) then we apply for spouse visa etc.. I really pray things don't reach that stage... it would be truly devasting. If they do then the boy will have to have a travel document ideally British..this i will have to discuss with my finace

Thanks Again JAJ

If there is anybody out there that could give me some insight and advice in regards my case please please it most appreciated

Aliga, JAJ has dealt with your child's nationality issue. I shall comment upon the visa issues.

Firstly can you clarify :-

On expiry of her Discretionary Leave to Remain, i wrongly advised my partner to submit an application for extension of stay as an unmarried partner of a person present and settled in UK Form FLR (M) . Not realising that could only submit this application if in UK on a visa i.e. limited leave to remain.

Are you saying that you waited until after the expiry of the DLR before submitting an application for UPV? Or was the application made shortly before the expiry of the DLR?

As regards the marriage, given that it is to take place in a Church of England Church, under current legislation no CoA ... Certificate of Approval to Marry ... is needed ... but do not be at all surprised if the legislation changes at some time in the future. I would recommend that you get married as soon as possible. Have the banns already been read three times? If not at least try to get that done in the near future.

OK, so now let's assume that the marriage has happened! Does that instantly give your spouse the right to stay in the UK? No! Indeed it has to be said that if would be far easier to the spouse to return to their country of origin and apply for a spouse visa there. If that out of the question? What country are we talking about?

An application could be made in the UK but expect that to take a very long time to be decided, and there is no guarantee that it will succeed eventually.

In other words, whilst a CoE marriage gets round the inability to get a CoA, it does nothing to assist the visa situation, apart from the fact of showing that the two of you are now legally married. Which OK is useful ... otherwise a fiance(e) visa would need to be applied for abroad.

Good Evening John

Firstly thanking you dearly for your time and advice, i have read your response with my finace and it is deeply appreciated

In your reponse to your questions firstly the application ( note : the wrong one ) was made 28 days prior to the expiry of the DLR ( my finace is a stickler for time and deadlines )

On the marriage issue planning to acheive this in the next few months ( so much to arrange ...more stress !! )

Thanks John , i am fully aware that marriage does not wipe the slate clean and give my missus automatic stay in the UK. But in my eyes, this whole issue of home office / immigration to the side. I am doing what i was meant to have done ( I won't get all emotional )

My fiance's country of origin is Uganda , East Africa

John , you've enlightened me i assumed if we receive further bad news from the home office that we would have to go to Uganda and apply there ( God knows how long it would take ) .. wasn't aware we could simplify the scenario and apply right here in the UK ( but be prepared for delay ) , would prefer this route ,if worst comes to the worst

Aliga wrote:Good Afternon JAJ

Thanking so much for the advice in regards to my son and future child. I was indeed aware that the bizarre ruling that my son even though i am British is not and thus follows his mother ( my finance ) citizenship. Was also aware that on marriage then the child will in fact be British.

Was not however aware of the change in law in regards to children born after July 2006 to a British Father will be British at birth....bureaucacy gone mad !!

The entitlement of children of unmarried British fathers to claim British citizenship is not a question of a "bizarre ruling" or "bureaucracy gone mad" but is a clear statute laid down in the British Nationality Act 1981 as amended by the Nationality, Immigration and Asylum Act 2002. Previous legislation had similar restrictions.

The Home Office are obliged to implement the law as laid down by Parliament.

You should understand that while times have changed, in the past, children generally had relatively tenuous links (at best) with unmarried fathers. And as British citizenship should normally only be based on genuine ties to the United Kingdom, it was felt in the past that an unmarried father was not a close enough connection in itself to the United Kingdom to allow transmission of citizenship.

Many other countries have had similar rules. As I said, times have changed and now the law has been changed in the United Kingdom too.

And as for the child "following the mother's citizenship", that is a matter for the country of the mother's nationality. The United Kingdom can only decide who is and is not British - whether a UK born child has any other nationality is a matter for the other country involved.

Will download the MN1 form and discuss with my partner ( remembering that someone at the home office could still say no and there goes £200 down the drain )

The Home Office won't "say no" because although this type of registeration is technically "discretionary" there is a clear set of policies underlying this discretion that must be followed. It is not based on the whim of whoever is dealing with the application.

You can read the policy in section 9.9 of this document from the Nationality Instructions (pdf):
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

HOWEVER, if you are planning to get married in the next few months there is no need to proceed with form MN1 as your child should automatically become British as soon as you get married. Just apply for a British passport (for the child) at the Passport Office after the marriage.

The registration concession is really designed for those pre-July 2006 children where the parents do not have any intention to get married in the near future. The Home Office won't ask about marriage intentions, but it's really just a waste of time and money registering the child this way when marriage is imminent.

Firstly Happy New Year JAJ

Hope all is well

Thanking you dearly for your advice as to UK born children legislations etc. Your advice on this has been much appreciated.

Have discussed it further with my partner

Will keep you abreast as to developments in my finace and my case

Hoping 2007 is going to be a good one