Children w/o ILR - MN1 3(1) refused

[frazhassan]

HI Friends. My case is not very different. my wife and me have recently obtained BC after 5 years of Tier 2 then an year of ILR. My children born abroad(ages 12, 13 and 15) are still on Tier2 dependent Visa which only expired on 15/05/2016. Soon I received my passport in Feb,, I submitted MN1 3(1) for for all of them. It was refused with the objection " the children are not settled in the UK as defined by immigration law. A minor who is or a dependent of EEA is not settled in UK untill they have granted Indefinite leave to remain here or required permanent residence under European law. Neither of which is so present. sufficient grounds couldn't be found to exercise the exceptional discretion". I have submitted NR application and included good standing certificates, proof of self dependence with no dependence on public funds etc. and waiting for response. Now the question is: do I need to wait for the response before I apply for ILR? or Should I apply anyway as there could be a risk of overstay.
Looking forward to your kind response.
Thanks

[noajthan]

To avoid confusion & jumbled responses, I have moved your question to its own thread (this one).

[noajthan]

HI Friends. My case is not very different. my wife and me have recently obtained BC after 5 years of Tier 2 then an year of ILR. My children born abroad(ages 12, 13 and 15) are still on Tier2 dependent Visa which only expired on 15/05/2016. Soon I received my passport in Feb,, I submitted MN1 3(1) for for all of them. It was refused with the objection " the children are not settled in the UK as defined by immigration law. A minor who is or a dependent of EEA is not settled in UK untill they have granted Indefinite leave to remain here or required permanent residence under European law. Neither of which is so present. sufficient grounds couldn't be found to exercise the exceptional discretion". I have submitted NR application and included good standing certificates, proof of self dependence with no dependence on public funds etc. and waiting for response. Now the question is: do I need to wait for the response before I apply for ILR? or Should I apply anyway as there could be a risk of overstay.
Looking forward to your kind response.
Thanks

Unclear why these minors do not have settled status by being processed previously along with parent/s.
The requirements and guidelines for such a registration at discretion are very clear.

There is no SLA or stated timeline for reconsideration; it could take months or a year or more.

Suggest process applications for ILR asap.
Note: The teenage children will have to have lived in UK for at least 2 or 3 years (and show their future lies in UK) to be considered for registration.

[secret.simon]

Pages 13-14 of the Guide MN1 lists the factors that the caseworker would look at when considering applications at discretion. They include;

 The child’s connections with the UK – we would expect the child to be free of any restrictions on his or her stay in the UK
 Where the child’s future is likely to lie
 The parents’ views
 The parents’ nationality and immigration status – we expect either both parents to be British citizens or one parent a British citizen and the other parent settled in the UK.
 Whether the child is of good character
 The length of time the child has lived in the UK – we expect at least 2 years residence (particularly if the child is over the age of 13)
 Any compelling circumstances.

The expectations above are by definition not cast in stone, but you would have to provide very good reasons for the caseworker to depart from the guidance.

I would suggest applying for the children's ILR ASAP (before expiry of their current visas) as any overstay may affect their good character requirements and rule them their registration/naturalisation for 10 years.

[CR001]

@secret.simon - kids visas already expired on 15th May 2016.

[secret.simon]

My children born abroad(ages 12, 13 and 15) are still on Tier2 dependent Visa which only expired on 15/05/2016.

I am a bit confused. Have the children's visas expired already or haven't they?

If the children's visas expired on 15th May, they are already overstayers. Overstays of under 28 days are normally ignored for purposes of immigration law, but it is still an overstay.

The good character requirements for naturalisation and registration can take all overstays into account, as they are made under different laws and different rules.

[imi99999]

HI Friends. My case is not very different. my wife and me have recently obtained BC after 5 years of Tier 2 then an year of ILR. My children born abroad(ages 12, 13 and 15) are still on Tier2 dependent Visa which only expired on 15/05/2016. Soon I received my passport in Feb,, I submitted MN1 3(1) for for all of them. It was refused with the objection " the children are not settled in the UK as defined by immigration law. A minor who is or a dependent of EEA is not settled in UK untill they have granted Indefinite leave to remain here or required permanent residence under European law. Neither of which is so present. sufficient grounds couldn't be found to exercise the exceptional discretion". I have submitted NR application and included good standing certificates, proof of self dependence with no dependence on public funds etc. and waiting for response. Now the question is: do I need to wait for the response before I apply for ILR? or Should I apply anyway as there could be a risk of overstay.
Looking forward to your kind response.
Thanks

Oh I am very sad to hear that.
How long your children have stayed in the UK before you sent their MN1 application

[frazhassan]

Thanks all for your response.
I am still within 28 days period after visa expired.
I applied for NR on the bases:
"Children's good character
Studying in private schools.
No burdon on Government ( Don't receive any benefit)
their stay in country is more than six year on Tier2 dependent visa.
Both parents British citizens and Tax payer at higher rate.
Established life in the country.
Their best future lies within this country."

I was in the impression that as long as NR application is with UKBI the person never get overstayed.

Please advise if I could apply for their ILR through premium service to avoid any further delay.

[secret.simon]

I was in the impression that as long as NR application is with UKBI the person never get overstayed.

I presume that by NR, you mean naturalisation.

Firstly, children do not naturalise, they register as British citizens.

Secondly, naturalisation and registration are not a part of the immigration process and hence do not come under Section 3C leave (when their status continues while the application is under consideration). The children have been overstayers since 15th May and that may now impact their future registration as that counts against their good character.

I don't think that having become overstayers, they can apply for ILR via a PSC appointment. You will almost certainly not get one for tomorrow (the 28th days since expiry of their T2 dependent visa).

But wait for further feedback from others on this point (about applying for ILR via PSC).

[frazhassan]

Thanks. NR meant Nationality application review application after MN1 refusal

[secret.simon]

Thanks. NR meant Nationality application review application after MN1 refusal

No part of the naturalisation/registration process is covered by Section 3C of the Immigration Act 1971 and so, at the moment, your children have no leave to remain in the UK and are technically overstayers.

[noajthan]

Thanks. NR meant Nationality application review application after MN1 refusal

Reconsideration is to address any administrative or procedural errors, omissions or oversights on part of HO; its not apparent that the caseworker has made any in this case.

HO is very careful not to create precedents and does not decide such cases willy nilly outside of any framework.
Registration is at discretion and discretion was evidently applied.

[frazhassan]

Thanks for your advice. I have booked the appointment for ILR premium application on Thursday June 9th. Its still within 28 days after Tier 2 dependent visa expired (15/5/16). Hope things will go smooth. Still no response about NR (nationality reconsideration) application.

[CR001]

There won't be such a quick response for the reconsideration. There is no timeframe within which HO do them and it can take many months, possibly even a year.

[frazhassan]

Yesterday my kids eventually got ILR through premium application. Now at least their stay is legal while waiting for NR ( citizenship reconsideration) application. It was big chunk of money (£9500) involved "uhhh". Lets see what happens next.

Just a question? How long do kids have to be on ILR before they can apply for citizenship. (both parents are British citizens and all kids are under 16). Is this one year like adults or quicker?

[CR001]

They should be able to apply for citizenship now.

[noajthan]

Yesterday my kids eventually got ILR through premium application. Now at least their stay is legal while waiting for NR ( citizenship reconsideration) application. It was big chunk of money (£9500) involved "uhhh". Lets see what happens next.

Just a question? How long do kids have to be on ILR before they can apply for citizenship. (both parents are British citizens and all kids are under 16). Is this one year like adults or quicker?

No specific time free from immigration time restrictions (ie with settled status) is specified for minors.

For 3(1), older teenagers are expected to have spent at last 2 years in UK and to be able to show that their future lies in UK.

All applications will again be at Home Secretary's discretion and the good character requirement will be applied to minors of age 10+, (same as for adults).
(Under 10 and children are assumed to be little angels ).

[frazhassan]

Thanks all.

[BIG Dobby]

I was in the impression that as long as NR application is with UKBI the person never get overstayed.

I presume that by NR, you mean naturalisation.

Firstly, children do not naturalise, they register as British citizens.

Secondly, naturalisation and registration are not a part of the immigration process and hence do not come under Section 3C leave (when their status continues while the application is under consideration). The children have been overstayers since 15th May and that may now impact their future registration as that counts against their good character.

I don't think that having become overstayers, they can apply for ILR via a PSC appointment. You will almost certainly not get one for tomorrow (the 28th days since expiry of their T2 dependent visa).

But wait for further feedback from others on this point (about applying for ILR via PSC).

secret.simon,

You are very correct/right as they are now above 13 years of age. If they were less than 10 year that would have been different. Good Character requirement comes into play from age of 13...

Your advice is very correct!

[Casa]

I was in the impression that as long as NR application is with UKBI the person never get overstayed.

I presume that by NR, you mean naturalisation.

Firstly, children do not naturalise, they register as British citizens.

Secondly, naturalisation and registration are not a part of the immigration process and hence do not come under Section 3C leave (when their status continues while the application is under consideration). The children have been overstayers since 15th May and that may now impact their future registration as that counts against their good character.

I don't think that having become overstayers, they can apply for ILR via a PSC appointment. You will almost certainly not get one for tomorrow (the 28th days since expiry of their T2 dependent visa).

But wait for further feedback from others on this point (about applying for ILR via PSC).

secret.simon,

You are very correct/right as they are now above 13 years of age. If they were less than 10 year that would have been different. Good Character requirement comes into play from age of 13...

Your advice is very correct!

SECTION 4: GOOD CHARACTER
To be of good character a person should show respect for the rights and freedoms of
the United Kingdom, observe its laws and fulfil their rights and duties as a resident of
the United Kingdom. Checks will be made on children aged 10 years and over to
ensure that this requirement is met.

[BIG Dobby]

SECTION 4: GOOD CHARACTER
To be of good character a person should show respect for the rights and freedoms of
the United Kingdom, observe its laws and fulfil their rights and duties as a resident of
the United Kingdom. Checks will be made on children aged 10 years and over to
ensure that this requirement is met.

[/quote]


You are right, Casa. That was why I said if they kids were less than 10 years... in my previous post

[Casa]

SECTION 4: GOOD CHARACTER
To be of good character a person should show respect for the rights and freedoms of
the United Kingdom, observe its laws and fulfil their rights and duties as a resident of
the United Kingdom. Checks will be made on children aged 10 years and over to
ensure that this requirement is met.

You are right, Casa. That was why I said if they kids were less than 10 years... in my previous post[/quote]

To avoid misunderstanding by other members, your actual wording was "Good Character requirement comes into play from age of 13..."
I've clarified that it is actually from the age of 10.

[BIG Dobby]

SECTION 4: GOOD CHARACTER
To be of good character a person should show respect for the rights and freedoms of
the United Kingdom, observe its laws and fulfil their rights and duties as a resident of
the United Kingdom. Checks will be made on children aged 10 years and over to
ensure that this requirement is met.

You are right, Casa. That was why I said if they kids were less than 10 years... in my previous post

To avoid misunderstanding by other members, your actual wording was "Good Character requirement comes into play from age of 13..."
I've clarified that it is actually from the age of 10.[/quote]



You have done well... tanx

[frazhassan]

Hello again.

it has been now more than six months I since applied for administrative review after my kid's MN1 refusal. Today I received a letter from UKVI stated that there is no time frame to respond to your application. So decision will be made with no time binding. Now I am stuck; whether to wait for administrative review or withdraw review application and apply for kids registration ( As now I already have ILR for them for last nearly six months.).
Please advise.
Thanks

[BIG Dobby]

Hello again.

it has been now more than six months I since applied for administrative review after my kid's MN1 refusal. Today I received a letter from UKVI stated that there is no time frame to respond to your application. So decision will be made with no time binding. Now I am stuck; whether to wait for administrative review or withdraw review application and apply for kids registration ( As now I already have ILR for them for last nearly six months.).
Please advise.
Thanks

Inasmuch as it is discretionary, there is no automatic right and it could linger as long as they (HO) want it.


If I were to make decision on your children's citizenship application, i would have refused their application. This is because 'discretion' means weighing on a scale or balance how deeply rooted their ties are in the UK. In your circumstances, you have clearly not satisfied it as none of your children were born in the UK to provoke that case law (for the engagement of family life) and there are 3 children (not one) involved. No doubt both of you are British; it was very clear that you are avoiding paying for ILR for them.

You must have to wait for the outcome. If your first child is turning 18, then you can make fresh application or you can threaten them with legal action if it stays longer than 1.6 years. The decision is entirely yours. Personally, I will take legal action if it takes longer than necessary.

That is my personal advice...