Applying for child's passport, parent on ILR

[ubiquitous]

Hi,

I'm in the process of applying for a British passport for my baby daughter. I've held Indefinite Leave to Remain since 2013 and it was my understanding that through this, my daughter is automatically granted British Citizenship at birth.

I decided to call the Passport Office to find out what documents I would need to send in to support the application, and was told that actually, my Indefinite Leave to Remain is NOT in itself enough. They also require my Australian passport and P60s for the last 5 years to 'prove that I was exercising treaty rights'. What I don't understand is why this is required. Everything I've understood previously has suggested that her British Citizenship is a right from birth due to my ILR and is not subject to proof that I was exercising treaty rights. The lady I spoke to said that if I had true permanent residency, these documents would not be required, but that Indefinite Leave to Remain is not true permanent residency, it is only freedom to come and go in the UK. This is really not what I understood to be the case either. I've always seen it as the same thing as permanent residency, except that if I didn't enter the UK for 2 years, it could be revoked.

Is she right about this? My understanding from previous discussions on this forum was that all I needed to do was send my biometric residence permit along with the application to prove my daughter's right to BC and therefore a passport. Everyone has always talked about this being the only requirement to prove the eligibility of a child born while the parent was holding ILR.

The issue is partly because I don't have previous P60s handy and would have to speak to previous employers to get access to them, and also because there was a period of about 12 months (while I was on indefinite leave to remain) where I was not working. I did not claim any benefits of any kind, and I completely supported myself with my own savings. The lady said for periods of 12 months or more, this may mean I don't qualify as 'exercising my treaty rights' for the 5 years before my daughter's birth.

But even if I did claim benefits, isn't it my right as ILR holder? How would that diminish my daughter's right to British Citizenship?? I find it very disappointing that my daughter's BC/passport might be jeopardised by the fact that I chose not to work while supporting myself. Can anyone offer any advice about this?

[ohara]

HMPO advisor is clearly confusing ILR and PR.

The timeline here is important. I assume the child was born in the UK, but when?

The child only acquires British citizenship at birth if you already hold ILR and the child is born in the UK.

[ubiquitous]

Actually, reading more about 'exercising treaty rights', it seems that this is supposed to only apply to EU treaty law and therefore to European Economic Area nationals, and shouldn't have anything to do with me as an Australian citizen holding Indefinite Leave to Remain. Is this lady that I spoke to mistaken to insist on this documentation for me?

And to clarify, she was born in the UK only 7 weeks ago, and I've held ILR since 2013. I didn't specify this above, but I thought it was obvious as I was talking about a baby daughter (I guess some people still refer to their baby daughter even when they're adult! lol).

[ohara]

You are correct, the "exercising treaty rights" only applies to those on the EEA route, which you are clearly not.

As your child was born while you were on ILR it will automatically be British at birth and you can apply for a passport. I assume you have an ILR BRP - you will need to use this as proof of your settled status with the application.

[ubiquitous]

Yes, the biometric residence permit is the root of the question that I actually called up to discuss, and was side tracked by the issue of providing additional documentation when she mentioned 'exercising treaty rights'.

I wanted to speak to them to ask whether the biometric residence permit is the only way to prove ILR status at the time of my daughter's birth. I asked this because I currently have a naturalisation application (AN1) in progress and as per discussion elsewhere, it's been determined that it could be a problem to return the biometric residence permit to the Home Office once approved, because then there would no longer be any proof of ILR status at the time of the child's birth. I never got to ask this question, so the question still remains. I will call them back and 'set them right' about my status, and also try again to ask this question.

[ohara]

ILR BRP seems the main way for people in your situation to prove settled status when applying for child's British passport. You are not the first person who has run into the problem of the Home Office wanting the BRP to be returned after naturalising. My advice would be to apply for your child's passport asap. You'll hopefully have enough time for it to be processed and documents returned before you attend your ceremony.

In the worst case scenario, you could simply tell HO that your BRP is with HMPO and you will return it asap. We don't know of anyone so far being fined for not returning the BRP after ceremony, but you would appear to have a valid excuse (they do state to send a letter explaining why you are not returning it if you are unable).

Someone didn't think this process through when they brought in the requirement to return BRP. It's a shame they can't just physically cancel it, for example by cutting off the corner or punching a hole in it, and let you keep it.

[ubiquitous]

OK, I spoke to them again (a different person this time) who immediately noticed the mistake of the previous lady I spoke to and confirmed that yes, proof of ILR is all I would need to prove eligibility for my daughter's British Citizenship.

I asked about the issue of the biometric residence permit and they advised that they don't know if any other way of proving ILR except if there was a stamp in the foreign passport (there isn't in my case). They said that the only thing you could do if you ever needed to prove your ILR status at a later date is to write to the Home Office for documentation. Very frustrating. So I'm hoping that will never be required, but I suspect it is going to come back to bite me at some point years later. Some jobsworth is going to want proof of my daughter's claim to British Citizenship (passport itself is not proof, only an indication) and I will have no easy way to prove it. Anyway, rant over. It sounds like I have no choice but to send my biometric residence permit with the application and not plan any travel until it's approved.

Thanks for your quick replies ohara. Indeed it sounds like a poorly thought-out plan to require the return of the permit. All other forms of paperwork (old passports, letters etc) are typically allowed to be kept for historical documentation, but the lack of ILR proof years later is a huge oversight.

[CR001]

Did you apply for your naturalisation through NCS?

If not, as soon as you get your BRP back apply for passport for the child using the 1 week fastrack. You will have time as you are only British once you attend your ceremony and you can delay this a little if necessary. You don't need your BRP for the ceremony and the same only needs to be return AFTER your ceremony.

[ubiquitous]

That's true. At the moment, I'm not too concerned about the timing as I only applied for naturalisation two months ago so I should have plenty of time to apply for the passport. The issue isn't really just about the application for my daughter's passport right now.

The issue is also that at some point in the future, my daughter may need to prove her citizenship. Her birth certificate isn't proof, because neither of her parents were British at the time of birth. Her passport isn't proof, because it's only suggestive that she's British, not actual proof.

In fact, I recall reading a case here in the forums recently where a British passport holder had her passport revoked as the Home Office believed it (and her citizenship too, I think?) was obtained fraudulently by her parents decades earlier. She was finding it very difficult to get the required documentation to prove anything, and in any case was a child when it happened. With this sort of thing in mind, I am concerned that retaining the correct documentation is the only insurance against things like this.

The only original proof my daughter could provide is documentation that I was a holder of ILR at the time of her birth because it is the SOLE determining factor that provides her with citizenship at birth. In 10 or 20 years time, where will the proof be if l have to give my biometric residence permit back to the Home Office? I will no longer hold any documentation that supports her claim to British citizenship. The fact that I will soon be British (through my naturalisation) will not be enough, because it will be granted after her birth. You see the problem here? Maybe it will never be an issue in the future, but maybe it will be. We don't know how strict the Home Office will be, and we don't know how easy it will be to get the information we require. Keeping our OWN copy of the supporting documentation is the only way to remain confident that we can prove citizenship at some point in the future, and it's being taken away by my naturalisation process.

[ohara]

Home Office have exactly what you need.

https://www.gov.uk/government/publicati ... us-form-ns

I believe the current fee is £162.

When you get the certificate, you can also use that to apply directly for the passport without needing your BRP.

[ubiquitous]

Right, I had stumbled across that previously. But that's still another £162 for something that the biometric residence permit should do the job of, and it's £162 just to keep in my back pocket IN CASE the Home Office require it years later when I no longer have a BRP. For now, it's not needed because I can apply for my daughter's passport with the BRP because I won't need to return it for a few more months when my naturalisation application is approved.

I know there are some ways to get the documentation required for my daughter, but it's needlessly complicated. One shouldn't have to pay £162 for the privilege of replacing the original evidence that would have sufficed in the first place.

[CR001]

Get a couple of copies of your BRP notarised to keep safe before you send it off to HO after your ceremony.

[ubiquitous]

Get a couple of copies of your BRP notarised to keep safe before you send it off to HO after your ceremony.

It's an idea, but I wonder if it would be considered legitimate supporting evidence. The Passport Office seems to only accept original documents.

[vinny]

Who knows how long records are kept?

Ask your MP to raise your concerns.

[ubiquitous]

For those who are interested, I've written a letter (snail mail) to the UKVI department of the Home Office asking them to provide guidance on how we can prove ILR status in the future if our BRP is confiscated. I think I've covered the issue fairly completely. The address I was advised to send it to was (as per the chap at the UKVI hotline) is:
Department 1
UKVI
The Capital
New Hall Place
Liverpool
L3 9PP

The letter I've written is below. If I get any useful response to this, I'll post it here.

To whom it may concern at the Home Office,
I am writing to you in the hope that you can respond to my below query and provide an appropriate solution or guidance on this matter.
I am an Australian citizen, having lived in the UK since January 2008. I applied for and was granted Indefinite Leave to Remain in December 2012 and have held this status since then. In March 2016, I applied for naturalisation and am currently waiting for the approval of this. In February 2016, my daughter was born in the UK. I am married to a French citizen. Due to my Indefinite Leave to Remain status at the time of her birth, I understand that my daughter was and is a British Citizen from birth. That is, she is a British Citizen otherwise than by descent.
I am planning to apply for her first British passport soon, and I understand that one of the supporting documents that the Passport Office will require to demonstrate proof of British Citizenship is proof of one of her parents’ ILR status – in this case, mine. I have a Biometric Residence Permit which I will submit and I expect this will be fine for her passport.
However, I am concerned that when my naturalisation application is approved and I attend the citizenship ceremony, I will be required to return the Biometric Residence Permit immediately. This, as I understand it, is the only evidence that I have that I had ILR at the time of my daughter’s birth. If, for any reason, my daughter is required to prove her eligibility for British Citizenship, her existing passport alone may not be proof.
For example, I understand that when she becomes an adult and applies for her first adult passport, she would again be required to prove her parents’ immigration status at the time of her birth, and neither she nor I would have any evidence to prove this, if my biometric residence permit is required to be returned to the Home Office. As best I can understand the situation, it is the only supporting document that can verify this, unless I apply for “confirmation of British nationality status” for my daughter via Form NS which apparently is for situations in which you don’t have the documents needed to support the passport application. But I don’t feel that I should have to pay £162 for the ‘privilege’ of replacing a perfectly valid and useful form of supporting evidence with another, just because the Home Office deems it necessary to confiscate the Biometric Residence Permit.
It seems that the Home Office has not considered the ramifications of replacing a passport stamp for Indefinitely Leave to Remain with a Biometric Residence Permit that is not allowed to remain the property of the ILR holder for the purpose of proving settlement status at some point in the future. I don’t believe one should have to jump through bureaucratic and expensive hoops to prove one’s citizenship, especially when the evidence has not been ‘lost’, it has been forcibly confiscated. A simpler and fairer method should be available to my daughter and many others likely in a similar situation, who are clearly British citizens according to the law, to prove at any point in her life.
Given the above, can an exemption be made so that I can retain the Biometric Residence Permit, or can an alternative means of proving my ILR status at the time of her birth be suggested or provided? I am happy to provide more details of this case, including names, reference numbers, application numbers etc.

Regards,
David

[Richard W]

HMPO advisor is clearly confusing ILR and PR.

Actually, I strongly suspect the confusion was between Australia and Austria. They're often confused.

[ubiquitous]

HMPO advisor is clearly confusing ILR and PR.

Actually, I strongly suspect the confusion was between Australia and Austria. They're often confused.

I thought about that possibility too, but then I thought about it again... I clearly mentioned being on ILR status and that I was very confused by her insistence that I should need to provide proof of earnings, since my understanding was that my ILR status meant my daughter gained BC automatically and was not subject to any further tests. So the question remains: Why would I have ILR if I was an EU citizen? She failed to grasp that, so I don't think it was simply that she confused Australia and Austria. If she did, that was only part of her misunderstanding.

[Richard W]

Perhaps she further confused 'biometric residence permit' with 'biometric residence card'. A residence card would not be enough for British citizenship to be acquired; one would need 'permanent residence'. Just to further confuse things, there was a period when ILR was called 'permanent residence'.

[ubiquitous]

I also debated with her about whether I was a permanent resident or not. She was insistant that ILR is not permanent residence - it is merely the right to 'come and go freely'. All signs point to her thinking I was an EU citizen given she cited 'treaty rights' as the reasoning behind it, but I gave her every opportunity to understand my situation. I guess she had already made up her mind and wasn't actually thinking about what she was saying and how it related to what I had explained. She wasn't rude, but she never showed any hesitation in her answers either, despite my protests that it didn't sound right and was nothing like what I had heard previously. If I had been more familiar with the term 'treaty rights', I would have immediately spotted her mistake, but I had to google it after getting off the phone to understand where she was confused.

After confirming with others here that I wasn't crazy, I called back and wanted to speak to her again to set her straight, because it would be really unfortunate if someone like her was in charge with someone's case - these mistakes affect people's lives in very real ways, and people don't always realise that they have good grounds for appeal. Unfortunately I spoke to someone else who had no idea who she was so I wasn't able to tell her she'd given me very incorrect information. Oh well.

[ohara]

I guess she had already made up her mind and wasn't actually thinking about what she was saying and how it related to what I had explained. She wasn't rude, but she never showed any hesitation in her answers either, despite my protests that it didn't sound right and was nothing like what I had heard previously.

I have found the best thing to do in this situation is simply slam the phone down and then shout some swear words in another room.

Presumably HMPO will be recording all calls and they will have a record of yours and the 'advisor' who advised you incorrectly.

ILR is permanent residence hence the name, indefinite leave to remain. There is just a clear distinction now to distinguish between the UK and EEA immigration routes.

Actually, I strongly suspect the confusion was between Australia and Austria. They're often confused.

Completely understandably mistake to be made by someone who works in a passport office.