Father ILR, Mother ILR Dependent and Baby born in UK

[mkytsongs]

Hi All,

I have few queries for my newborn baby born in UK. I am on ILR and my wife is my Dependent based on my ILR and got Settlement Visa.

Now we had a new born baby in UK. I understand the baby is eligible for British Citizenship but I don't to get my baby British Citizenship, instead i want to retain Indian Citizenship for my baby too.

I have following queries.
1. Can i apply for my child as ILR dependent, instead of applying for British Citizenship?

2. Can i apply for ILR dependent visa, before applying Indian passport?

3. Do i have to pay IHS for applying as ILR dependent?

4. Do i have to take baby and mother to home office if i apply through Super Priority service or only Father is enough?

[vinny]

If a child was born in the UK to an ILR holder parent, then child is automatically British. A British child may apply for a CoE-RoA to be placed in a foreign passport instead of a British passport.

[mkytsongs]

Thanks Vinny for your reply.

I have already applied for Indian Birth registration and Baby's Indian passport application with High commission of India.

After i received the passport, can i apply through Family Visa Route - https://www.gov.uk/uk-family-visa/child ?

[CR001]

No, as the child is automatically British, you can't apply for a 'visa' for a British citizen which is why vinny has advised a CoE/RoA (click the link to read). CoE/RoA is substantially cheaper than a 'visa'. It will be valid for the full validity of the childs passport and would have to be renewed when a new passport is applied for each time.

A child born automatically British in the UK to Indian parents is able to hold both nationalities until they turn 18, when they would then have to decide which citizenship to keep and which to give up.

[mkytsongs]

Thanks for the guidance.
I have applied for my new born baby ILR-Settlement and successfully got ILR and BRP card for my baby with visa validity date same as my wife.

We had other options below:
1. Apply for British Passport.
2. Apply for CoE/RoA.
but i wanted my newborn to have BRP card and Indian Passport, so i applied for ILR.

This is the link, i have used: https://www.gov.uk/indefinite-leave-to- ... amily-visa--> Apply as a child (family visa) --> Apply online.

In Super Priority appointment, I have submitted usual documents for applying ILR-Settlement like Council tax letters, Bank statements, Birth certificate issued in UK etc., and got the decision on the same day and email sent with confirmation.

Note:
I applied this without baby's Indian passport.

[secret.simon]

Did you add your own ILR BRP to the child's application?

[mkytsongs]

Yes, i provided mine and my wife's ILR- Settlement BRP card as a proof and applied for my newborn ILR-Settlement.

[mkytsongs]

Yes, i provided mine and my wife's ILR- Settlement BRP card as a proof and applied for my newborn ILR-Settlement.

Also, Caseworker informed that i can apply for British Citizen for my newborn as me and my wife are already settled with ILR - Settlement. I made him clear i am not willing to get British Citizenship or British Passport for my baby and want my Baby to continue as Indian Citizen and have Visa and BRP in the category as me and my wife with ILR-Settlement visa.

[vinny]

If a parent was settled when child was born in the UK, then may get a refund under Inappropriate/void applications?

[mkytsongs]

May get a refund under Inappropriate/void applications?

Thanks vinny for the link.
I am not going to apply for this refund as i am happy that i have got the BRP card and ILR Settlement Visa that i expected for my baby.

[vinny]

If they have made a mistake, then be careful in the future…

[secret.simon]

You misunderstand the situation at hand here.

The child isn't eligible to apply for British citizenship. The child is already automatically a British citizen by operation of the law (because the child was born in the UK to at least one parent with ILR at the time of the child's birth), with neither the wishes of the parents or of the child being relevant to the automatic acquisition of British citizenship.

A British citizen can't be issued ILR/ILE (because the Immigration Act 1971 does not apply to British citizens). Therefore the ILR BRP (and any BRP issued under the Immigration Act 1971) is invalid.

That may cause issues in the future (such as when the ILR BRP is due for replacement, presumably in 2024).

Also, unless the child is registered with the Indian diplomatic authorities, the child does not acquire Indian citizenship. I presume that you have already done so.

In any case, Indian law (UK law is not fussed about dual citizenship) - in particular, see Section 4 of the Indian Citizenship Act 1955 - allows such a child to hold both British and Indian citizenships (but not a non-Indian passport) till the age of 18 years and six months, when they must choose for themselves which citizenship they wish to retain.

If you do not wish to apply for a British passport, the correct way forward is to apply for a CoE-RoA in the child's Indian passport.

As mentioned above, the ILR BRP is already invalid in UK law and you will need to make a second CoE-RoA application. That is why you should apply for a refund.

[mkytsongs]

I will definitely post the outcome when i apply for my baby's ILR BRP card replacement in 2024.

[zimba]

I will definitely post the outcome when i apply for my baby's ILR BRP card replacement in 2024.

There is some news that BRPs are being totally phased out in 2024. Also, you have been now told several times that the child should have not been issued with any form of UK leave like ILR as British citizens cannot have any leave to remain. Your child is automatically British at birth. The UKVI may notice the error and revoke the card at some point

[mkytsongs]

I understand you are all trying to help me, thanks for that.
I wonder why they have a separate section to apply for ILR for baby even if the parents are settled or British citizen.

This page https://www.gov.uk/indefinite-leave-to- ... amily-visa, clearly says, even if the "parent is a British citizen or settled in the UK", they can apply for ILR as shown in the below image.

[vinny]

From your link:

If you were born in the UK after your parent settled here, you do not need indefinite leave to remain. Check if you’re a British citizen - you will either be a citizen or eligible to apply for citizenship.

Their Visit caseworker guidance explained the law a bit better:

People who are British citizens or who have right of abode

A person who is a British citizen, or who has right of abode in the UK cannot be given permission to enter or stay under the Immigration Rules. This is because under section 1(1) of the Immigration Act 1971 a person with right of abode is not subject to immigration control.

If a person who has right of abode applies for a visit visa and you are satisfied that they have right of abode, you should advise them that their application cannot be considered, the application will be withdrawn, and they may want to apply for a certificate of entitlement to right of abode or a British passport instead. The application fee will not be refunded.

If you believe the person may have right of abode in the UK, but they have applied for a certificate of entitlement to right of abode or a British passport and have been refused on the basis that they have not established their entitlement, you can issue a visit visa provided the applicant meets the Immigration Rules. Where you are not satisfied that they meet the Visitor Rules, they can be refused a visa in line with the Rules (for example, that they are not a genuine visitor).

However, I think refusing a refund may be unreasonable, especially when wrongly advised.

[secret.simon]

I understand you are all trying to help me, thanks for that.
I wonder why they have a separate section to apply for ILR for baby even if the parents are settled or British citizen.

This page https://www.gov.uk/indefinite-leave-to- ... amily-visa, clearly says, even if the "parent is a British citizen or settled in the UK", they can apply for ILR as shown in the below image.

I'm lousy at image editing, so I will just refer back to the text in the image that you posted above.

If you look carefully just above the third red box that you have highlighted in the image, it states that two (it states "both") conditions need to be met for the child to be issued ILR.

You may be eligible if both:

• you have a family visa as a child - there’s a different way to apply if you’re a dependant on your parent’s work visa

• your parent is a British citizen or settled in the UK

The first condition can't be met as the child is already a British citizen automatically, as mentioned above. Therefore the entire paragraph does not apply.

Note that in the following paragraph (Eligibility), it also states

Eligibility

You must be able to prove all of the following:

• you’ve had permission to be in the UK as your parent or relative’s dependant

• you are or will be living with your parent, parents or relative

• you’ll be supported and accommodated adequately without using public funds

• you’re not married, in a civil partnership or living an independent life

Again, the first condition fails because the child has not previously been issued with a dependent visa.

[mkytsongs]

Thanks for the details. I will leave it as it is for now and i will post the outcome when i apply for a replacement BRP in future.

[Ticktack]

I have read and re-read this and still can't find a logical reason why you have decided to this. Interestingly, you know and agree that everyone here is trying to help, but you're satisfied with the outcome.

Decisions are usually made in the best interest of the child.
1. ILR is far more expensive.
2. Child would need you or your Mrs to prove citizenship if needed in future. This would never be the case with ROA.
3. Questions would be asked every time you child goes out and comes back in country with ILR i.e how long have you been away. With ROA it might still be asked by a friendly immigration officer, but it just conversation and it doesn't affect anything.
4. ROA would have lasted the duration of the passport. ILR BRP last (currently) till 31/12/2024. No one knows how long the next upgrade would look like. Even though the ILR as a status doesn't change, but the proof changes. Just like a passport would expire, but it doesn't affect your citizenship.
5. ILR is conditional ROA isn't.

Wishing you all the best.

Please also note that it's never too late for you to reverse or correct it.