Immigrationboards.com

I have recently been granted ILR on Tier 2 general route.
My child was born in UK in 2017.

My child and wife, both are currently on PBS Dependant Leave to Enter visa.

Since my child was born in UK and i have been granted ILR, can i apply ILR for my child ?

Rules are bit confusing and it says both parents should have ILR for a child to have ILR. Is this correct or a child can still apply for ILR when only one parent is settled.

Note - I do not want to apply for British naturalization for my child.

Others have claimed it is possible to get ILR for a UK born child but the rules do not suggest this is possible without both parents being settled, as far as I see it.

It depends on which rules are being referred to.

vinny wrote: ↑

Sat Mar 23, 2019 12:56 am

It depends on which rules are being referred to.

shall i go ahead and apply ILR for my child? It is no where clearly mentioned.

If you dont mind asking, may I know why you dont want to register your child as BC instead?

Zimba is correct that 319J prevents child from being granted ILR. However, it’s possible under different rules. Unfortunately, caseworkers appear to be unfamiliar with the latter rules.

So, it may be a risk.

Registration as a British citizen is a safer option, as it’s an entitlement.

Vinny, can you please elaborate on how other rules allow it ?? Even under Part 8 I do not see how it is possible. I looked at what you quoted before but under paragraphs 304-309 it was possible if and only if one parent was British or had right of abode in the UK (not ILR)

tier11417 wrote: ↑

Sat Mar 23, 2019 1:16 pm

If you dont mind asking, may I know why you dont want to register your child as BC instead?

As of now, i dont have any long term plan. once i plan to be settled in UK then i will go for citizenship.

vinny wrote: ↑

Sat Mar 23, 2019 3:05 pm

Zimba is correct that 319J prevents child from being granted ILR. However, it’s possible under different rules. Unfortunately, caseworkers appear to be unfamiliar with the latter rules.

So, it may be a risk.

Registration as a British citizen is a safer option, as it’s an entitlement.

Hi Vinny, May you please take me to the rule where it is wriiten. You said caseworker may not be familiar with the latter rules. Which rule you are referring to ?

vir179 wrote: ↑

Sat Mar 23, 2019 9:33 pm

vinny wrote: ↑

Sat Mar 23, 2019 3:05 pm

Zimba is correct that 319J prevents child from being granted ILR. However, it’s possible under different rules. Unfortunately, caseworkers appear to be unfamiliar with the latter rules.

So, it may be a risk.

Registration as a British citizen is a safer option, as it’s an entitlement.

Hi Vinny, May you please take me to the rule where it is wriiten. You said caseworker may not be familiar with the latter rules. Which rule you are referring to ?

Please click on the links vinny has provided, the blue underlined words are links to what he is referring to.

CR001 wrote: ↑

Sat Mar 23, 2019 9:34 pm

vir179 wrote: ↑

Sat Mar 23, 2019 9:33 pm

vinny wrote: ↑

Sat Mar 23, 2019 3:05 pm

Zimba is correct that 319J prevents child from being granted ILR. However, it’s possible under different rules. Unfortunately, caseworkers appear to be unfamiliar with the latter rules.

So, it may be a risk.

Registration as a British citizen is a safer option, as it’s an entitlement.

Hi Vinny, May you please take me to the rule where it is wriiten. You said caseworker may not be familiar with the latter rules. Which rule you are referring to ?

Please click on the links vinny has provided, the blue underlined words are links to what he is referring to.

All rules say both parents should be settled in UK. Nowhere it is written that a UK born child can go for ILR when only one parent has ILR.

306

... 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.

vinny wrote: ↑

Sat Mar 23, 2019 11:11 pm

306

... 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.

Hi Vinny, In this case, which form i should be using for my child's ILR?

One of the problems of applying under this route is that there doesn’t seem to be a specific form for it!

The lack of an application form may effectively deny a UK born child the ability to apply under this route.

vinny wrote: ↑

Sun Mar 24, 2019 12:07 am

One of the problems of applying under this route is that there doesn’t seem to be a specific form for it!

The lack of an application form may effectively deny a UK born child the ability to apply under this route.

Hi Vinny, I am still noy clear as to what should i do? shall i take advice from solicitor?

vinny wrote: ↑

Sat Mar 23, 2019 11:11 pm

306

... 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.

But this may interpreted differently. Given that the rules generally explicitly differentiate between requirements for leave to enter/remain and ILR, it is reasonable to assume that paragraph 308 covers the ILR requirement and the statement in 306 does not apply to ILR but only to leave to enter/remain. 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.

and this is what 305 (i)(b) and (i)(c) say:

(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;

This also may explain why there is not a specific form for a child ILR under these provisions. Paragraph 308 basically allows you to apply for leave to remain and then they may offer you ILR when 305 (i)(b) or (i)(c) applies.

(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;

but 305(i)(c) doesn't applies in my case and
in 305(i)(b) - i am not british citizen and as far as i know ILR doesn't mean right of abode in UK.

I had interpreted 306 to also include when a parent had indefinite leave, as it’s simply a longer period than any periods of limited leave. Neither British citizens nor right of abode holders have any leave, hence the extra provisions in 308.

Zimba wrote: ↑

Sun Mar 24, 2019 6:03 pm

This also may explain why there is not a specific form for a child ILR under these provisions.

There is also no specific form for a child to apply for limited leave under these provisions.

Fair enough but the different interpretation might be the reason why ILR is not granted under 306.
I guess FLR(M) should cover the part 8 rules and such application as per paragraph 308 could even lead to ILR.