Child of Settled Parent in Breach of the Immigration Laws

[Richard W]

This is currently a purely hypothetical question, but someone may know the answer.

Is a child born in the UK to a parent (as defined by BNA 1981 Section 50(9) and (9A)) who is settled (BNA 1981 Section 50(2)-(4)) but in breach of the immigration laws (BNA 1981 Section 50A) necessarily born British?

I had thought the answer was an obvious 'yes', but Section 50A(2) claims the definition of being in beach of the immigration laws may be relevant for determining "whether a person born on or after the relevant day is a British citizen under section 1(1)". Section 1(1) makes no reference to being (or not being) in breach of the immigration laws. Is Section 50A(2) simply covering a potential change to the law?

There are a few cases of people being settled but 'in breach of the immigration laws':

• A person born in the UK after 1983 who has never left it and is not a citizen of any EEA state whatsoever.
• An ordinary Dutchman who entered the UK on or after 12 October 2014 by walking across the inter-Irish border but has no EEA sponsor, does not exercise treaty rights, and thereby ceases to be lawfully resident under the EEA regulations after three months. Like an Irishman in the same situation, he is settled, but because he is not an Irish citizen he does not have a 'qualifying CTA entitlement' (Section 50A).

[ouflak1]

There are a few cases of people being settled but 'in breach of the immigration laws':

• A person born in the UK after 1983 who has never left it and is not a citizen of any EEA state whatsoever.

Has that person ever acquired any recognized leave to remain? Because if they haven't, they cannot technically be in breach of any immigration laws. Atleast not the way the laws stand now.

[*] An ordinary Dutchman who entered the UK on or after 12 October 2014 by walking across the inter-Irish border but has no EEA sponsor, does not exercise treaty rights, and thereby ceases to be lawfully resident under the EEA regulations after three months....

I might be wrong, but I don't think that happens. Atleast not under the current state of affairs.

[vinny]

There are a few cases of people being settled but 'in breach of the immigration laws':

• A person born in the UK after 1983 who has never left it and is not a citizen of any EEA state whatsoever.

Has that person ever acquired any recognized leave to remain? Because if they haven't, they cannot technically be in breach of any immigration laws. Atleast not the way the laws stand now.

(c) does not have leave to enter or remain in the United Kingdom (whether or not the person previously had leave)

appears to be inconsistent with

“in breach of immigration laws” means without valid leave where such leave is required, or in breach of the conditions of leave.

and A280(b), 304-309.

[Richard W]

There are a few cases of people being settled but 'in breach of the immigration laws'...

The crucial part of the definition of 'settled' is not in Subsections 50(2)-(4), as implied by BNA 1981, but in Subsection 50(5):

It is hereby declared that a person is not to be treated for the purpose of any provision of this Act as ordinarily resident in the United Kingdom or in a British overseas territory at a time when he is in the United Kingdom or, as the case may be, in that territory in breach of the immigration laws.

Being in breach of the immigrations laws prevents one from being settled!

This means the settled status of the Irish without ILR who entered using the CTA was, from when Section 11 of the Nationality, Immigration and Asylum Act 2002 came into force in November 2002 until January 2010, dependent on their status under the implementation of EU law in so far as it depended on their being Irish. What has now become the qualifying CTA entitlement made them free of immigration restrictions, and the EEA rights under the Immigration (European Economic Area) Regulations 2000 often prevented them from being in breach of the immigration laws. (I haven't worked out what happened after these regulations were revoked in 2006.) Combining the two with ordinary residence in the common law sense then made them settled.

Please note that being 'in breach of the immigration laws' does not imply that one has been associated with any unlawful activity.