MN1 or ILR child question

[WilsoninUk]

If my understanding is correct, not having a visa should not be an issue for routes 3(2) and 3(5). Her being an overstayer should not matter for these routes as she has an entitlement to citizenship. But you can ask the people you booked consultations with to confirm this point.

I will make another suggestion here - not sure if it would work. If you have sole responsibility (ie the father is her bio father but has no legal rights to being a parent whatsoever) and you married a British citizen - would it be feasible for your now husband to adopt her, and would this make him able to give consent for naturalising your daughter under 3(5)? This may or may not work and you may need to live here with your daughter and now husband for 3 more years from the moment he becomes legally her father before she is eligible, but maybe is something to try when you speak to the solicitor if you are willing to give it a shot.

Unfortuntely it would be a very big uphill battle to strip father of his parental rights. I did look into that. It would make things a lot easier!

I do have another question which you may be able to answer...

If I can't get the proof for 3(2), or the permission for 3(5), do I need to get a private life visa for my child for 5 years to then be eligible for ILR? I have read conflicting information on this. Some info says that if I am a British citizen and my child is my dependent, then they can get IRL immediately (similar to getting indefinite leave to enter), and it talks about sponsoring dependent children and financial thresholds. But mostly I'm only finding information for the 7 year continous residence child route, which I think generally applies to children of parents with no legal status or don't yet have ILR. I recognise that the situation we're in is rare because theres not a lot of british citizens with children who don't have legal status in the UK!

To add to my previous post...Section 8, paragraph 298...can this be a viable path to immediate ILR for a child of a British Citizen not yet registered? (It doesn't look like I need legal sole responsibility, just to demonstrate that I have sole responsibility for day-to-day care and/or other parent has abandoned their responsibilities)


Requirements for indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom
1. 298. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:
1. (i) is seeking to remain with a parent, parents or a relative in one of the following circumstances:
2. (a) both parents are present and settled in the United Kingdom; or
3. (b) one parent is present and settled in the United Kingdom and the other parent is dead; or
4. (c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child's upbringing or the child normally lives with this parent and not their other parent; or
5. (d) one parent or a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
6. (ii) has or has had limited leave to enter or remain in the United Kingdom, and
1. (a) is under the age of 18; or
2. (b) was given leave to enter or remain with a view to settlement under paragraph 302 or Appendix FM; or
3. (c) was admitted into the UK in accordance with paragraph 319R and has completed a period of 2 years limited leave as the child of a refugee or beneficiary of humanitarian protection who is now present and settled in the UK or as the child of a former refugee or beneficiary of humanitarian protection who is now a British Citizen, or
4. (d) the applicant has limited leave to enter or remain in the United Kingdom in accordance with paragraph 319X, as the child of a relative with limited leave to remain as a refugee or beneficiary of humanitarian protection in the United Kingdom and who is now present and settled here; or
5. (e) was last given limited leave to remain under paragraph 298A; and
7. (iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
8. (iv) can, and will, be accommodated adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds in accommodation which the parent, parents or relative the child was admitted to join, own or occupy exclusively; and
9. (v) can, and will, be maintained adequately by the parent, parents or relative the child was admitted to join, without recourse to public funds; and
10. (vi) does not fall for refusal under the general grounds for refusal, and
11. (vii) if aged 18 or over, was admitted to the United Kingdom under paragraph 302, or Appendix FM, or 319R or 319X and has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with Appendix KoLL.

[contorted_svy]

This question needs to be asked in the ILR forum - I don't know enough about ILR to answer.

[WilsoninUk]

This question needs to be asked in the ILR forum - I don't know enough about ILR to answer.

Thanks! I dropped a post in the ILR forum. I think this might be the fix until I can sort citizenship. Fingers crossed.

[secret.simon]

I was born overseas because my dads job.

What was your father's job? And where (country should be sufficient) and when (month/year) were you born? If your father was in Crown Service (and you can prove it) at the time of your birth, or under certain circumstances, if you were born in a British colony or protectorate, you may be a British citizen otherwise than by descent, thus making your child a British citizen by descent. Obviously you'll need an impressive chain of documentation to go down this route, but it may be worth exploring.

2. If I did manage to get permission for 3(5) from father, or proof for 3(2), is it too late to register if child has been here without a valid visa or ILR?

Registration under Section 3(2) or Section 3(5) needs to be applied for before the child's 18th birthday. Other than that, I don't think there is any deadline.

1. Can child be (potentially) registered under 3(1) if they do not have legal status or ILR - and sufficient proof that father is uncontactable?

I think the lack of parental consent will trigger child protection alarms off, whichever route you take. You will want to factor that into any plans you have.

Section 3(1) gives broad discretion for the Home Office to register a child as a British citizen. But it will likely ask why the child does not have legal status and what attempts have you as the parent made to fix that issue.

As an aside, registering under Section 3(1) in this case (when at least one parent was a British citizen at the time of birth of the child) would make the child a British citizen by descent (Section 14(1)(c) of the British Nationality Act 1981).

If my understanding is correct, not having a visa should not be an issue for routes 3(2) and 3(5). Her being an overstayer should not matter for these routes as she has an entitlement to citizenship.

I agree with this assessment.

If you have sole responsibility (ie the father is her bio father but has no legal rights to being a parent whatsoever) and you married a British citizen - would it be feasible for your now husband to adopt her, and would this make him able to give consent for naturalising your daughter under 3(5)? This may or may not work and you may need to live here with your daughter and now husband for 3 more years from the moment he becomes legally her father before she is eligible, but maybe is something to try when you speak to the solicitor if you are willing to give it a shot.

An interesting possibility. You'd want to consult a solicitor who knows enough about the intersection between family law and citizenship law to advise you on this.

As I understand you've held a NIN since you were 4 - any chances you can get those records from HMRC?

I doubt there would be any records there, as the OP would not have been working at that point. The UK does not have a continental European
style compulsory registration of all residents system. So mere registration of a NINo without any activity means nothing.

who said that your stamped passports would not be suitable evidence?

This choice of keeping a foreign passport with a ROA may be your saving grace.

I am inclined to agree with the solicitor on this point. There are many people whose passports aren't necessarily stamped on entry (and formerly exit) into the UK (British citizens, people with CoE-RoA in their non-UK passports and formerly EEA citizens) and so even if they have some stamps, there is no guarantee that their passports were stamped at every entry and exit and so they can't be used to prove past residence in the UK.

Simply put, the only people who can use their passports to prove residence in the UK are those issued visas and leave to remain under the Immigration Rules, because their passports need to be stamped in on every arrival in the UK.

There is a relatively high chance that this won't work as it was so long ago, but as you still have that old passport, try requesting a SAR with UKVI border office to ask for all the times you crossed the border in that time period. They say they have information from the year 2000 - I don't know if this will be enough for your case. https://www.gov.uk/government/publicati ... mmigration

Also see this thread about data retention at the Home Office. There may be similar data deletion policies at HMRC, DWP and the NHS. The onus on maintaining records is on the applicant, not on the government department.

Also, I don't think there is any point in giving the data received from a SAR back to the same government department that provided them. As I understand it, the applicant needs to provide proof that can then be corroborated with the Home Office's records. Giving their own records back to the Home Office is unlikely to meet the requirements.

my birth country requires I use their passport to enter and thats where my parents lived. I was in school here and for the majority of the time my parents weren't in the UK. Oddly in the 5 year period I only went back to the birth country once. I didn't bother getting a Uk passport until I moved here as an adult as I have no intention of returning to my birth country at all (I don't like to use the words "home country" because it's not my home!).

Presumably you share at least one citizenship with Elon Musk, as two of his citizenships require their citizens to enter those specific countries on their passports.

@CR001, in extremis, would the child be eligible for an Ancestry visa?

[contorted_svy]

There is a relatively high chance that this won't work as it was so long ago, but as you still have that old passport, try requesting a SAR with UKVI border office to ask for all the times you crossed the border in that time period. They say they have information from the year 2000 - I don't know if this will be enough for your case. https://www.gov.uk/government/publicati ... mmigration

Also see this thread about data retention at the Home Office. There may be similar data deletion policies at HMRC, DWP and the NHS. The onus on maintaining records is on the applicant, not on the government department.

Also, I don't think there is any point in giving the data received from a SAR back to the same government department that provided them. As I understand it, the applicant needs to provide proof that can then be corroborated with the Home Office's records. Giving their own records back to the Home Office is unlikely to meet the requirements.

I am not sure I agree on this. The HO accepts its own records (eg SAR) for citizenship applications. It is clearly stated in the guidance. Though I agree with the general comment that the onus of proof is on the applicant, so the applicant has to find the right records, but these records can come from the HO.

[WilsoninUk]

I was born overseas because my dads job.

What was your father's job? And where (country should be sufficient) and when (month/year) were you born? If your father was in Crown Service (and you can prove it) at the time of your birth, or under certain circumstances, if you were born in a British colony or protectorate, you may be a British citizen otherwise than by descent, thus making your child a British citizen by descent. Obviously you'll need an impressive chain of documentation to go down this route, but it may be worth exploring.

2. If I did manage to get permission for 3(5) from father, or proof for 3(2), is it too late to register if child has been here without a valid visa or ILR?

Registration under Section 3(2) or Section 3(5) needs to be applied for before the child's 18th birthday. Other than that, I don't think there is any deadline.

1. Can child be (potentially) registered under 3(1) if they do not have legal status or ILR - and sufficient proof that father is uncontactable?

I think the lack of parental consent will trigger child protection alarms off, whichever route you take. You will want to factor that into any plans you have.

Section 3(1) gives broad discretion for the Home Office to register a child as a British citizen. But it will likely ask why the child does not have legal status and what attempts have you as the parent made to fix that issue.

As an aside, registering under Section 3(1) in this case (when at least one parent was a British citizen at the time of birth of the child) would make the child a British citizen by descent (Section 14(1)(c) of the British Nationality Act 1981).

If my understanding is correct, not having a visa should not be an issue for routes 3(2) and 3(5). Her being an overstayer should not matter for these routes as she has an entitlement to citizenship.

I agree with this assessment.

If you have sole responsibility (ie the father is her bio father but has no legal rights to being a parent whatsoever) and you married a British citizen - would it be feasible for your now husband to adopt her, and would this make him able to give consent for naturalising your daughter under 3(5)? This may or may not work and you may need to live here with your daughter and now husband for 3 more years from the moment he becomes legally her father before she is eligible, but maybe is something to try when you speak to the solicitor if you are willing to give it a shot.

An interesting possibility. You'd want to consult a solicitor who knows enough about the intersection between family law and citizenship law to advise you on this.

As I understand you've held a NIN since you were 4 - any chances you can get those records from HMRC?

I doubt there would be any records there, as the OP would not have been working at that point. The UK does not have a continental European
style compulsory registration of all residents system. So mere registration of a NINo without any activity means nothing.

who said that your stamped passports would not be suitable evidence?

This choice of keeping a foreign passport with a ROA may be your saving grace.

I am inclined to agree with the solicitor on this point. There are many people whose passports aren't necessarily stamped on entry (and formerly exit) into the UK (British citizens, people with CoE-RoA in their non-UK passports and formerly EEA citizens) and so even if they have some stamps, there is no guarantee that their passports were stamped at every entry and exit and so they can't be used to prove past residence in the UK.

Simply put, the only people who can use their passports to prove residence in the UK are those issued visas and leave to remain under the Immigration Rules, because their passports need to be stamped in on every arrival in the UK.

There is a relatively high chance that this won't work as it was so long ago, but as you still have that old passport, try requesting a SAR with UKVI border office to ask for all the times you crossed the border in that time period. They say they have information from the year 2000 - I don't know if this will be enough for your case. https://www.gov.uk/government/publicati ... mmigration

Also see this thread about data retention at the Home Office. There may be similar data deletion policies at HMRC, DWP and the NHS. The onus on maintaining records is on the applicant, not on the government department.

Also, I don't think there is any point in giving the data received from a SAR back to the same government department that provided them. As I understand it, the applicant needs to provide proof that can then be corroborated with the Home Office's records. Giving their own records back to the Home Office is unlikely to meet the requirements.

my birth country requires I use their passport to enter and thats where my parents lived. I was in school here and for the majority of the time my parents weren't in the UK. Oddly in the 5 year period I only went back to the birth country once. I didn't bother getting a Uk passport until I moved here as an adult as I have no intention of returning to my birth country at all (I don't like to use the words "home country" because it's not my home!).

Presumably you share at least one citizenship with Elon Musk, as two of his citizenships require their citizens to enter those specific countries on their passports.

@CR001, in extremis, would the child be eligible for an Ancestry visa?

Dad was not in armed forces or anything related to government. We did not live in a commonwealth territory, so no ancestry visa. The records I need are pre-2000 (87-93). Good to know I wasn't bilked by solicitor over the dependent visa.

When it comes to 3(1) and consent, I have a load of proof of his lack of parenting. Sadly, the easiest box to check is the sole responsibility requirement.

As far as I can tell (and what I will zero in on with the solicitor consultation)s - the potential routes are 3(2) if I can get proof (not going well at the moment), 3(1) if its possible, showing a long trail of proof that father is refusing to engage, the IRL I mentioned above, or a private life visa based on the child - 7 continuous residency. Whatever it is, it needs to be done as soon as possible. The private life visa is the least desirable, but if thats I'll I can do for now, then it is what it is. I just need to direct the consultions so I don't spend an hour being told information I already know.

Thank you so much for your feedback and ideas! I appreciate it!

[WilsoninUk]

Update to all:

I had the first of 3 advice sessions with an immigration solicitor. He believes based on all the evidence of:

-of trying to get permission from father for 3(5) and all the shenangans his father has done
-affidavits from family and friends who knew me during the 3 year period I lived here as a kid ( for trying 3(2))
-getting rejections for information from council, border force, school etc...in terms of them not having information (for trying 3(2))
-whatever else I have regarding my childs behaviour, school records, character references, referees etc...for (3(1))

...that 3(1) would more than likely be approved.

We're going to try this:
-He (if I hire him) will contact the father on behalf of my child to ask for the signed consent form
.....if father doesn't respond.....
-We will apply for 3(1)
-If 3(1) fails, we'll apply for a Private Life visa

The Section 8, Paragraph 298 would likely require a court ordered sole responsibility, and I don't really have time for that. I'd rather trying 3(1) first.

I will keep updating because I know that stories like mine will help others out there struggling.

[contorted_svy]

Best of luck.