ILR for child born to tier 2 parents

[askdash]

Hi all,

This forum has been helpful to me in the past. I have a question regarding ILR application for my 2 year old born in the U.K.

Immigration history
Self - T2(G) eligible for ILR in Nov 2019
Wife - T2(G) currently eligible for ILR
Child - dependent of wife since birth

My question is: Can the child apply for ILR with mother now or does he have to wait until Nov 2019 when I’m eligible? If he can apply now, which form should we use and can we attach his application to the mother’s application thus applying together?

We got legal advice not to apply for his ILR until I’m eligible but I would like to verify this. It is really strange to me that home office would give him citizenship under the MN1 route but not ILR.

Note: we do not want British citizenship for him, only ILR.

Thank you for your time.

[zimba]

Being born in the UK will only influence the entitlement/right to British citizenship because 'the right to UK citizenship' is not governed by the immigration rules. However ILR is covered under immigration rules and according to those rules, both parents must be settled for grant of ILR under paragraph 319J.

[askdash]

Thank you for your reply. Unfortunately, I’m confused now. Replies from other moderators on this topic seems to contradict your response:

indefinite-leave-to-remain/ilr-for-chil ... 45904.html

Also, for children born in the U.K., the guidance on PBS dependant says this:

8. You can qualify for indefinite leave to remain if you meet the following conditions:
b. As a dependent child:
• You must be the child of a parent who has, or is at the same time being granted ILR
• You must have, or have last been granted, leave as the child of or have been born in the United Kingdom to, the Points Based System Migrant

[zimba]

I followed the thread and I still do not see the rules allowing that. The rules only allow this if one parent is British citizen as far as I see it

[askdash]

Thank you for your response. I was referring to the posts by Obie that "both parent ILR" rules do not apply to children born in the UK. Also, the guidance in my post above details what can be done.

If my understanding is right, 305(i)(b) and 308 in the link below are sufficient for the child to apply and get ILR with the mother right? The immigration status of the other parent is immaterial here.

https://www.gov.uk/guidance/immigration ... ly-members

I'm not sure if I made this clear but the child's mother and I are on independent T2(G) visa and child is a dependant of the mother since birth.

I'd appreciate some help here.

[zimba]

I would like to see the rules that allow that.
This is what the paragraph 308 says:

308. A child born in the United Kingdom who is not a British Citizen and who requires leave to enter or remain in the United Kingdom in the circumstances set out in paragraph 304 may be given indefinite leave to enter where paragraph 305 (i)(b) or (i)(c) applies provided the Immigration Officer is satisfied that each of the requirements of paragraph 305 (ii)-(v) is met. Where an application is for leave to remain, such a child may be granted indefinite leave to remain where paragraph 305 (i)(b) or (i)(c) applies, provided the Secretary of State is satisfied that each of the requirements of paragraph 305 (ii)-(iv) is met.

So lets see what paragraph 305 (i)(b) and 305 (i)(c) says:

305. The requirements to be met by a child born in the United Kingdom who is not a British Citizen who seeks leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom are that he:

(i) (a) is accompanying or seeking to join or remain with a parent or parents who have, or are given, leave to enter or remain in the United Kingdom; or
(b) is accompanying or seeking to join or remain with a parent or parents one of whom is a British Citizen or has the right of abode in the United Kingdom; or
(c) is a child in respect of whom the parental rights and duties are vested solely in a local authority; and

So that child can be considered for ILR only if at least one parent is British or has right of abode (ILR does NOT give the parent right of abode) or is under the protection of local authorities. I do not see how that allows a child with one settled parent to be granted ILR.

[askdash]

Thank you for the explanation. One final question, 306 says:

Where the parent or parents have or are given periods of leave of different duration, the child may be given leave to whichever period is longer except that if the parents are living apart the child should be given leave for the same period as the parent who has day to day responsibility for him.

Based on this, what leave does the child get if one parent has ILR and the other T2(G) for a limited period?

[zimba]

I am not sure but remember that the rules have to be read as a whole and so you cannot have paragraph 306 and 308 effectively contradicting each other. I would say that given that paragraph 308 explicitly deals with ILR, then you can assume that paragraph 306 is talking about the limited leave to remain cases rather than ILR