Mother settled in the UK in 1986 - Some questions!

[FighterBoy]

This is nothing new, so not sure of the point you are trying to make.

A child born in the UK to a parent who is settled (ILR or PR) is automatically British, nothing has changed in this regard.

I didn't mention having ILR/PR/ILE. But merely being outside the UK at the time of birth + evidence of UK ordinary residence = 'settled' & British child, by technicality.

[CR001]

Settled = having ILR/PR or ILE.

What is it exactly that you are trying to point out?

A child born in the UK to parents who are not settled (ILR/PR/ILE), is not automatically British, regardless of whether one parent is in the UK or not.

[FighterBoy]

Settled = having ILR/PR or ILE.

What is it exactly that you are trying to point out?

A child born in the UK to parents who are not settled (ILR/PR/ILE), is not automatically British, regardless of whether one parent is in the UK or not.

Settled is defined as being free of immigration time restrictions in the UK + ordinarily resident. I suggested a loophole/technicality to satisfy this irrespective of ilr/pr/ile. That was the whole point of my post.

So I believe a child born in the uk, to a father outside the UK at the time of birth, who was considered ordinarily resident in the UK, is technically British.

A similar application of this technicality, is by naturalisation applicants from outside the UK, bypassing UK time restrictions. Whereas such applications can be rejected as it relies on SS discretion, citizens by birth are under operation of law.

[CR001]

For children born after January 1983, there is no 'automatically British' anymore if the parents were not settled (ILR/PR) at the time of birth. If the child is UK born before settled status, then the child has an entitlement to register as British under section 1(3) of the nationality act.

The key since 1983 is not where the parent(s) are at time of birth but whether they have settled status (different to ordinarily resident) as evidence of settled status (ILR/PR) has to be provided with a citizenship application under section 1(3) or a passport application if child was born after parent has settled status.

[FighterBoy]

You're not understanding my point of a loophole to satisfy the definition of settled irrespective of ilr/pr/ile, which are only methods of obtaining settled status, they do not define it. I suggest re-reading my posts.

[secret.simon]

My reading may have discovered something interesting:

- If a person is outside the UK, at that time they'd be under no UK time restrictions
- If there's evidence of them being ordinarily resident in the UK (job/wife/child etc)

By the BNA 1981's definition, they'd be settled? So their UK born child is British?

I am not entirely sure that you have read the text of the BNA 1981 itself.

You are quite close, but somewhat selective, in stating the requirements.

The definition of "settled" in the BNA 1981 is given in Section 50(2).

Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a British overseas territory are references to his being ordinarily resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period for which he may remain.

The way i would interpret the part that I have highlighted is that it specifically refers to the person's right to remain in the UK. So, let's assume, for the sake of argument, that a person is inbetween visas, has gone back to his home country and in the meanwhile, his (non-ILR/non-British) spouse gives birth in the UK. At this point in time, the person is subject to restrictions on his remain in the UK when he returns. Indeed, he has no right to return to return without a visa.

It could be argued on a technicality, that given that he is expected to have no restrictions on the period for which he may remain, that he is expected to have a leave to remain extant in that period.

As regards the point of "ordinarily resident", it is not defined in statute, but is governed by case law. There is a helpful summary on the gov.uk website that summarises the case law in this field and even helpfully states on the last page that as regards immigration law, the courts have yet to have a final say on the definition. But it does state that the person has to be legally resident in the country for it to count. It also states that continuation or otherwise of "ordinary residence" is determined by the purpose of absences from the UK. A person on a limited period visa has typically signed a declaration stating that he will leave the UK before the end of his limited leave to remain, unless he is granted an extension and therefore it may be construed that he can not form an "ordinary residence" beyond the term of his limited leave to remain.

As regards getting the High Court declaration of nationality that you queried in another thread, I am no lawyer, but I believe that what you will have to do is ask the Home Office for a declaration of nationality on Form NS and if they decline to issue you one or issue you a declaration stating that you are not a British national, to then file a case in the High Court asking for a direction to the Home Office to issue a declaration of nationality on the balance of probabilities.

[FighterBoy]

Thanks Simon. Fransman and UKVI disagree with your interpretation, they state in 7.2 of two documents that someone outside the UK is necessarily without time limit on their stay in the UK at that time. They said some used this loophole in naturalisation applications but the SS could decline as it's her discretion.

You also implied it yourself, that on his UK return he'd have a limited visa; but that's not relevant as it's after the child's birth. And to have limited leave in the UK you actually need to have it, hypothetical future applications aren't relevant.

Ordinarily resident can be a red herring/grey area. But if someone can evidence work/wife/child that should suffice. Agreed that illegals aren't ordinarily resident.

And thanks, I'm still gathering a couple of docs before I submit form NS. If it goes wrong I'll contact a solicitor to send them a pre-action notice for judicial review.

[secret.simon]

they state in 7.2 of two documents

Can you provide a link to the two documents and preferably the pages/sections of the documents?

But if someone can evidence work/wife/child that should suffice.

I am not entirely confident that that would suffice. If I were the Home Office, I would argue that a person who has no legal right to be in the UK, by definition, can not be ordinarily resident in the UK, no matter where the estate or family are located. That is to say that ordinary residence presupposes that the person has legal residence at that time.

I have no dog in this fight, in a manner of speaking, and am approaching this discussion from an entirely academic perspective.

[FighterBoy]

https://www.gov.uk/government/uploads/s ... r_18_B.pdf

See 7.2. It's identical to 7.2 of Fransman's book circa P.354, I think.

Also ordinary residence is not lost when leaving the UK, it would depend on various facts like how long the absence is, whether ordinary residence is sought elsewhere, what ties one has in the UK, etc. There's no evidence of any visa running out either.

Also I wish to point out my interest in this loophole is purely academic too. My own NS application will hinge on proving the likelihood of my father's ILR years prior to my birth, through various documents. Vinny has helped me with some of this. My father was in the UK when I was born and registered my birth too.