MN1 section3(1) application / ILR for EEA national child

[CityKat]

Hi,

I'm a EEA national with permanent resident card. I'm planning to apply for BC via naturalization. My question is regarding my child who is only 21 months old and born abroad when I was already settled here ( felt more comfortable giving birth in a specific hospital abroad due to my high risk pregnancy )

I'm a bit confused regarding her ILR status. She is the child of EEA and has lived most of her is life in the uk but obviously less than 5 years. Is ILR still relevant for child of EEA citizen settled in the UK? The MN1 states "Enter the date child was given indefinite to enter/remain in the UK. IF PARENT IS AN EEA National .... please ensure they qualify for settled status" ( By "they" do they mean the parent or the child?)

Second question is would I have a better chance to get my child registered as BC if I'm already naturalized or has a family application the same chance?

Note: as per birth certificate confirms I'm the sole parent of the child

Thanks for your help

[noajthan]

Hi,

I'm a EEA national with permanent resident card. I'm planning to apply for BC via naturalization. My question is regarding my child who is only 21 months old and born abroad when I was already settled here ( felt more comfortable giving birth in a specific hospital abroad due to my high risk pregnancy )

I'm a bit confused regarding her ILR status. She is the child of EEA and has lived most of her is life in the uk but obviously less than 5 years. Is ILR still relevant for child of EEA citizen settled in the UK? The MN1 states "Enter the date child was given indefinite to enter/remain in the UK. IF PARENT IS AN EEA National .... please ensure they qualify for settled status" ( By "they" do they mean the parent or the child?)

Second question is would I have a better chance to get my child registered as BC if I'm already naturalized or has a family application the same chance?

Note: as per birth certificate confirms I'm the sole parent of the child

Thanks for your help

ILR is for those unfortunate to be on UK domestic immigration route not those blessed to be on EU migration route.

Such a foreign-born child normally needs to acquire PR status before registering at Home Secretary's discretion in a section 3(1) of BNA application.

Caution: Do not naturalise yourself before child's status is assurred.
As a BC (even if a dual national) you will no longer be recognised (in this context) in UK as an EEA citizen and you will be unable to further sponsor your child as a dependent family member
Yes, this is the case even before Brexit.

Clearly your child is unlikely to acquire PR status in her own right as a qualified person (although it is not impossible).
So you can see that you naturalising at the 'wrong time' reduces your child's chances of making it.
It may ofcourse come to a question of who blinks first as UK is unlikely to be in EU in 5 years time.

There has, as I recall, been one case of an EEA family in last year or so where a child was registered despite lack of PR status.
There have also been refusals.
You can see that discretion in 3(1) cases may be decided either way.

You can dig further into the subleties and nuances of discretionary registration and get into the mind of the caseworker who will assess and weigh up the case, here:
https://www.gov.uk/government/publicati ... structions

[CityKat]

Thank you for your prompt rely... although I'm even more confused now because of your caution. Do you mean that I should wait until a deal for EEA nationals living here is confirmed before I seek BC or my child might be losing out on any EEA deal?

Obviously I cant register her if I only have permanent residency... Feeling quite stuck

PS: To be honest, After 12yrs plus in this country and contributing to its economy ...not feeling quite blessed being a EEA immigrants right now

Thanks for your advice.

[noajthan]

Thank you for your prompt rely... although I'm even more confused now because of your caution. Do you mean that I should wait until a deal for EEA nationals living here is confirmed before I seek BC or my child might be losing out on any EEA deal?

Obviously I cant register her if I only have permanent residency... Feeling quite stuck

PS: To be honest, After 12yrs plus in this country and contributing to its economy ...not feeling quite blessed being a EEA immigrants right now

Thanks for your advice.

Well, it all depends on perspective and expectations I suppose.
But no financial requirement nor language requirement (nor pub quiz - LITUK) on EU route.
And considerably less financially draining, £65 or so instead of £'000s to even get to the holy grail of settled status.

No, I mean make sure child has acquired PR before you naturalise.
Ofcourse if you have to wait 3 or 4+ years for that then you may not make the cut to naturalise yourself before UK leaves EU.

Then, once child's status is in the bag, if risk averse, register her as a citizen after you have become British.
Note: child only requires PR status; DCPR is not required for minors - just the status.

Alternately, apply to register child at same time as you naturalise (once child has PR) if reasonably confident in your application.

[CityKat]

Ok thanks for your guidance...

the whole process is quite confusing as both the HO "helpline" and checking service told me that dependent minors do not need PR to be registered...as a EEA national settled it is derived from my own permanent resident status. the guidance also states that kids should be at least 2 years in the UK but even that seems to have changed....

will dig up this issue.

Appreciate if anybody else has any more info on this.

Thanks for your help!

[noajthan]

Take helpline with pinch of salt - they are not answerable for help nor for consequences if its acted upon and proves wrong.
What reference or authority was used to back up such advice?
Chapter 9 & BNA s. 3(1) that caseworkers use?

The HO chapter 9 guidance does not say minors inherit PR automatically from parent.
And that is not the case under EU law either.
Many members have reported denial of DCPR to their dependents aged under 5 due to lack of 5 years of treaty rights.

Chapter 9 does say there's the expectation of freedom from immigration control and thus settled status is the norm for foreign-born minors - in EU context that's PR.

2 years expected residence is for older teens not babes in arms; no such tariff for young minors.

As mentioned, one case seen where no PR status was required.
Other refusals also seen.

Clearly Home Secretary's kind and bountiful discretion is just that - discretionary.

Note: You cannot 'test the water' by registering child (perhaps with no PR) before yourself, risking 'only' the child's fee.
You have to naturalise too.
If you succeed and child (with no PR) is denied then you are snookered as you cannot sponsor her as an EEA family member anymore (now being British).

[CityKat]

If I understand correctly my 2 year old will never be able to reach the 5 years of treaty rights on time since Brexit is around the corner?? or are treaty rights independent of Brexit... and her residence in the uk after brexit will still count towards the 5 yrs? Apologies but immigration is foreign territory for me

Surely if 2 yrs is ok for older teenagers who have spent many years in another country it should be enough for a 2 year old who has spent is whole life in the uk and there for has stronger links to this country? apologies but I don't understand the logic...

Currently obviously my kid is free of immigration control... would find it odd that whole of a sudden she will need to apply for visas or will be expulsed to Belgium when her only family is in the uk....

[noajthan]

Don't necessarily expect 'ordinary' logic or 'normal' common sense to apply.
You are dealing with a complex juxtaposition of EU and UK law.

Your child is not really free of 'immigration time restrictions' as she is not settled in UK (in an immigration context);
as an EEA dependent minor she would normally be expected to acquire PR.

The 2 years is a minimum and is for older teens to help demonstrate their future lies in UK.
These older teens are normally expected to be settled too (not simply to have been living in UK for 2+ years).

There is no minimum time specified for younger minors.
Don' t forget those on UK migration route can acquire ILR via a parent - although it still takes the parent at least 5 years.
How long it takes their minors to get ILR depends when they entered UK.

It is those on EU route who cannot 'inherit' from parents - there is no such provision in EU law, nor in the UK's EEA Regulations as transposed from the EU Directive.

A child born in Belgium and who is currently Belgian always has an option to live in Belgium.
After all a conscious choice of birthplace was made.
Had the child been born in UK to a settled parent she would have been born British too.

In the meantime a Union citizen who is not settled can remain and live in UK if a qualified person or sponsored by a qualified/settled person (who is not British).
This is the case for all those availing of free movement.

If child now remains in UK then to acquire PR she will be reliant on any transitional arrangements that come out of Brexit negotiations.
That is if UK leaves EU in 3 years or less.
As is the case for '000s of others in mid-flight on EU migration trajectory.
Hopefully British fair play will come to the fore.

You have the Chapter 9 guidance to evaluate.
So, alternately you may decide to fall on Home Secretary's discretion and naturalise/register without further ado.
If you search in forum you can find earlier cases.
Good luck.

[secret.simon]

Currently obviously my kid is free of immigration control

Errr, no, s/he is not "free from immigration control". S/he is here as a family member of an EU citizen who has acquired PR in her own right. That is, s/he is here because of your specific rights. If you left the UK, or your PR came to an effective end (such as by acquisition of British citizenship), the child's right to reside in the UK would terminate. As an EEA citizen, the child could reside in the UK as a self-sufficient citizen then, provided s/he has CSI (private health insurance) i.e. it would be treated as any EEA citizen and would have to meet the requirements of EU law.

But, s/he is not "free from immigration control" in his/her own right in the sense of having "settled status" in the UK, which can only mean having either ILR or PR (or being an Irish citizen).

both the HO "helpline" and checking service told me that dependent minors do not need PR to be registered

In a sense, they are both correct. There is no statutory requirement that a child born abroad requires "settled status" before registration. What you do need to do for it is to demonstrate that the future of the child is in the UK. Page 13-14 of the Guide MN show what other factors are taken into account when the registration of children born abroad is being undertaken. Also see Section 9.17 of the Staff Instructions on registering a child born abroad.

We have also had a recent success on these forums, where a child born abroad to a mother who has not acquired ILR and hence could not acquire ILR itself was successfully registered on the basis that the rest of the family was British.

Based on the information provided, I would say that the chances of refusal are higher than those of acceptance. More information may clarify matters. For instance, what is the status of the other parent? Are there any other siblings? What strong ties to the UK does the child have? How would you prove that it is in the best interests of the child to be settled in the UK?

If you have got a couple of thousand quid spare, you could test the law by apply for the child's registration and your naturalisation together. If the registration fails, but your naturalisation succeeds, just don't turn up for the citizenship ceremony. That way, you will not acquire British citizenship. You will be throwing away a couple of thousands though, so you may wish to reflect on that.

[CityKat]

Thanks Simon. I'm questioning the PR ending once I become BC since BC has stronger "value" than simple PR...

In any case I called again the HO and they assured me as the sole carer of a child who is only 2yrs old and as lived his whole life in the UK EVEN if born abroad they would never reject his registration as BC if the mother is naturalized. They told me it wouldn't make any sense and the HO would not do that ....as obviously the child is 100% dependent on his mother who is now a BC and his future lies with her. Rejecting the child and Expecting him to live in Belgium would effectively means that his sole carer who is now BC would have to leave the country and the life she has built for +12yrs in the UK ( quit job etc) and start from scratch in Belgium as a Brit. Improbable scenario.

I will take the risk.

I asked them what IF the improbable happens ... and they confirmed that if I'm accepted and child not I can indeed delay the naturalization ( and reapply later... obviously fee would be lost)

But they seemed to assure me this would not happen.

Lets see...

I'll keep you updated

[secret.simon]

I called again the HO

Rule.No.1. - Do.Not.Trust.The.HO.Helpline.

They are not accountable for the advice that they give you, even in writing.

they assured me as the sole carer of a child who is only 2yrs old and as lived his whole life in the UK EVEN if born abroad they would never reject his registration as BC if the mother is naturalized. They told me it wouldn't make any sense and the HO would not do that ....as obviously the child is 100% dependent on his mother who is now a BC and his future lies with her. Rejecting the child and Expecting him to live in Belgium would effectively means that his sole carer who is now BC would have to leave the country and the life she has built for +12yrs in the UK ( quit job etc) and start from scratch in Belgium as a Brit. Improbable scenario.

The improbable can and does occur, especially over here (in the immigration sphere).

If the child is not registered and the parent naturalises, obviously the child won't be expected to leave. But the parent will be expected to regularise the child's status on the UK Immigration Route, which has much more onerous requirements.

[noajthan]

Take helpline with a pinch of salt - they will be held not accountable for your actions based on their advice:
https://www.freemovement.org.uk/immigra ... pectation/

PR status in UK is not 'lost' as it is acquired under EU law; it can only be lost by a 2 years absence from UK.
However it, and someone's status as an EEA national, is simply no longer recognised (in this context) by UK law when someone naturalises.
(Did I mention the juxtaposition of EU and UK law).

Ref https://www.gov.uk/government/uploads/s ... als-v4.pdf
- page 28

It remains the case that discretion is discretionary for 3(1) cases, as explained at length above.

[CityKat]

Thanks to you both.

A solicitor confirmed the end of my treaty rights if I become a BC. I guess I better wait until Brexit is implemented... hopefully by that time my daughter will be 5 ( she's 2)... and the process might be "easier".

And who knows what they will decide for EU nationals already settled here... their kids living in the Uk might be granted PR automatically..


I better wait and see what happens...

Thanks
Katia