Unsuccessful Naturalisation MN1 3(5) Applications

[DawnW80]

Yes, it's all very confusing to what is the correct procedure and I think I need to see an immigration lawyer to advise me on what I should do next

[Obie]

British nationality act 1981, came into effect on the 1 January 1983.

Totally slipped my mind that you were born in 1980 before the act came into Law .

But the Secretary of State did not refuse because of this, did they? They said their was no signature of father.

The nationality guidance and caselaw require the Home office to look at the best interest of your child and where their future lies, which is clearly in the UK.

There is the issue of historical injustice, which is the fact that you would have been a British in 1980 when you were born if your father was the British, therefore your children should not be deprived of the rights that they would have had, if it had not been for the historical discrimination that women faced until 1st January 1983.

I believe section 3 (1) will succeed, the immigration status will not be determinative as their future clearly lies in the UK.

[Casa]

@Obie In order to succeed in the circumstances as they stand, wouldn't the children need ILR before applying for BC as they were admitted to the UK for an initial 6 months as visitors, which appears to be the status quo?

[DawnW80]

The children's citizenship was rejected under section 3(5) only because they wanted both parents in the UK start of the QP and both parents consent but I never married their father, he remains in SA somewhere and his name is not on their birth certificates, guidelines state that only mothers consent and residency is required so if I appeal on these grounds what are my chances? Perhaps I did not give enough information on the original application.

[Obie]

This was my point . This is the reason why it slipped my view that you were born before 1 Jan 1983.

My colleagues that wrote before are correct in law in saying your children don't qualify under 3 (5), but that point was not taken against you . Only 3 (5)(c) was invoked which I thought was wrong, as a result of 3 (6).

@ Casa : Well FI is authority that the rules is not hard and fast, exceptionally registration can be granted if the terms of the guidance is not met.

In the case of FI, both parents were not settled, in fact his father who was settled was living in New Zealand with his new family, the mother had only a residence card, and there was no guarantee that the mother will be granted ILR under the regulations.

In this case there are more compelling factors.

1. The mother is a single parent and is a British Citizen.

2. Had it not been for the historical injustice, and the discrimination on grounds of gender , which the 1981 act dealt with, she would have been a citizen at time of birth.

3. Children have lived in the UK for over 10 years and their future lies here, they cannot be removed legally at present or required to do so, and neither can the action of the parent in seeking to regularise their status count against them, when they had nothing to do about it. Neither can it be said, that it is contrary to their best interest to register them or their future is not firmly embedded in the UK.

4. Their grandmother was a British otherwise than by descent, and therefore there is ancestral links to the UK.

In all those circumstance, I see how failure to have ILR will be a determinative factors, when other factors considered individually or cumulatively carries more significant weight.

At present only 3 (5) (c) has been invoked on OP. I believe a strong argument can be made on 3 (1) point also.

[CR001]

Did you mention their father's details in the application form?

Could you post the exact wording of the refusal letter (taking out personal details).

[DawnW80]

No details of the father was mentioned as I have had no contact at all from him for the last 10 years and I clearly stated on the form his where abouts are unknown as he lives in SA. I also stated I was alone parent but maybe I needed to be more specific by stating I am the sole guardian to them both. This is what they have said in their letter.

'I refer to the application for the registration of child A and child B as British citizens.

We have noted that you originally submitted your children's application under section 3(5). We were unable to consider the application under this provision as the application did not meet the requirements. To register a child under section 3(5) we would need BOTH parents in the UK at the start of the QP and we would need BOTH parents consent, for this there is no discretion'

[CR001]

And presumably you submitted their full unabridged birth certificates with their applications, which would have made it evident if only you are listed as parent.

[Obie]

I accept that you may have difficulty with 3 (5)(a), but them invoking 3 (5)(b) and 3(5) (c) is wrong as 3 (6) (a) and (b) provides people in your circumstances an exemption to 3 (5) (b) and (c) .

That is an error, whether it will be material is yet to be seen..

[DawnW80]

I did submit both their unabridged birth certificates clearly showing only me as their mother and fathers section is blank.

[vinny]

Perhaps possible is to supply evidence that you have sole responsibility over your children (legally separated?) and request a reconsideration.

If this fails because of 3(5)(a), then try reapplying under 3(1).

[vinny]

If 3(1) fails, then child may apply for SET(F) first.

[Obie]

To my reading 3 (6) does not require anything close to sole responsibility.

It only requires one parent to show they are divorced or seperated from the other parent and then reference to father and mother in 3 (5) b and 3 (5)(c ) will be read as If it is mother or father.

[vinny]

I'm guessing that the OP wasn't even married.

[Obie]

But that does not seem to be necessary Vinny. The reason I say so is that by virtue of section 4F (4) and 4F (5) which was inserted into the 1981 Act by the Immigration Act 2014, P which in this case is OP'S children should not be penalised if his parents were not married at the time of his birth .

http://www.legislation.gov.uk/ukpga/201 ... 65/enacted

[DawnW80]

Thank you for everyone's advice, I will update on the outcome

[DawnW80]

Good day,

Could some one advise me how long the turn around time is for a NR form, payment taken 6 weeks ago?

[CR001]

There is no timeline or guidance on how long it will take. HO could take a couple of months or could take a year.

[Richard W]

To my reading 3 (6) does not require anything close to sole responsibility.

It only requires one parent to show they are divorced or seperated from the other parent and then reference to father and mother in 3 (5) b and 3 (5)(c ) will be read as If it is mother or father.

Sorry to further resurrect this, especially as it may be too late, but just in case it helps, Obie was right but for the wrong reason. As the children are illegitimate and were born before 1st July 2006, BNA 1981 Section 3(6)(c) still applies - only the mother's signature is required. The updated text of BNA 1981 lacks the original text that applies only to illegitimate children born before 1st July 2006. If the children had been born after that date, the father's signature would also be required.

As I read it, there are two basic ideas in Section 3(6):

• All parents with responsibility should be living in the UK with the child for the 3 years.
• Either living parent may tacitly object.

Sole responsibility doesn't help with the latter.

I have to confess it's not clear what is supposed to happen with children born since 1st July 2006 who have no father under the British Nationality Act. Presumably being 'British other than by descent' is only available for them by naturalisation.

[Obie]

I am not sure why you reopened this matter again ..

As I addressed these points already, in the light of the insertion into the 1981 Act, by the immigration Act 2014, which make provision for the category of people you mentioned.

Again it may help if you follow the whole thread.

http://www.immigrationboards.com/britis ... 74-20.html

[Richard W]

I am not sure why you reopened this matter again ..

Because DawnW80 (the OP) was asking how long reconsideration should take.

As I addressed these points already, in the light of the insertion into the 1981 Act, by the immigration Act 2014, which make provision for the category of people you mentioned.

In point of fact, the refusal was made because Section 3(5)(b) (residence by family) was not satisfied, not because of lack of consent.

Section 4F(4) gives the SS the power to waive the requirement for any parental consent, whereas by Section 3(6)(c) neither the father's presence nor his consent is required, for there is no father under BNA 1981. Section 3(6)(c) is more useful than Section 4F(4).

Again it may help if you follow the whole thread.

Indeed, I had the advantage of being able to leisurely read the entire thread first, whereas you were responding while key facts were being extracted, which can cause confusion. I still initially overlooked the fact that the refusal was because of the absence of the non-existent (under BNA 1981) father, rather than the lack of his consent.

[DawnW80]

Good evening,

I do apologise for posting on the original thread as I did not know how to create a new topic!

We completed a NR form several weeks back and I was just wondering how long could it take! The payment was taken six weeks ago and I haven't had my original documents returned.

Thanks

[Richard W]

@DawnW80, CR001 answered your question on Friday, and no-one has disagreed with her answer.

This is an entirely appropriate thread for the question. Any information that might have enabled a more precise answer is in this thread.