child born in USA to ILR parent

[rthaker]

I hold ILR since 2015 and have been on/off from UK since last two years living in USA
My son was born in UK in 2011 (did not had ILR then) and has Indian passport (didnt get chance to apply for his passport while I was there)
My daughter born recently in USA has american passport.

My question, can I apply for naturalization/registration of my two childrens from USA. We are intending to return to UK soon.


thans.

[Obie]

you absence to the United States has been lengthy and may have an effect on your ILR, this may have an effect on the child's registration also.

[rthaker]

yes I am aware of my absence I have never been away from UK for longer than few months. Are you aware of any actual immigration rule? that confirms what you are saying?
My question was more about if its possible to register outside UK.

[Obie]

Sorry I thought you said you have been residing in America since 2015 following the issuance of your ILR.

If you have been going in an out, then you will be fine to register the child.

I misread the original post.

[CR001]

Sorry I thought you said you have been residing in America since 2015 following the issuance of your ILR.

If you have been going in an out, then you will be fine to register the child.

I misread the original post.

In addition to Obie's advice above, you should note that your child born in the USA has no claim to registering as British and will require ILE or ILR and apply in the UK for citizenship when either parent applies for Citizenship.

[Obie]

Thank's Char, I think it is the Sunday effect . I totally lost sight of the American born child.

That child is clearly in a difficult position to the one born in the UK as you correctly pointed. My views were not in regards to the American born child.

[CR001]

Understood Obie and agree about the 'Sunday effect'

Surprising how many queries we get like this regarding children born abroad to ILR parents and the thought process being that the child can be registered as British for some reason.

[rthaker]

Thank you guys for reply on Lazy Sunday . Sorry if I was not clear with my question.

[rthaker]

Sorry I thought you said you have been residing in America since 2015 following the issuance of your ILR.

If you have been going in an out, then you will be fine to register the child.

I misread the original post.

In addition to Obie's advice above, you should note that your child born in the USA has no claim to registering as British and will require ILE or ILR and apply in the UK for citizenship when either parent applies for Citizenship.

You mean american born will have to stay in UK for 5 years to get ILR and then only will be eligible to apply for citizenship. Or there is a different ILR path for childrens.

[Obie]

I did not see a mention of 5 years in Char's post and i don't believe that is what she was indicating to you implicitly or otherwise.

The American born will need to apply for settlement, if mother has ILR, it may be ILE. Otherwise she will be granted leave consistent with mother. At the time of you seeking naturalisation, that child can be registered, or after you have stayed in the UK for 3 years, you may ask for discretionary issue of registration. However the American child will not be entitled to register now.

[rthaker]

thank you all for reply . I will also call UK embassy in US to confirm. thanks.

[JAJ]

I will also call UK embassy in US to confirm.

Likely a waste of time. They don't usually discuss immigration and nationality- and even if they did, there is no guarantee it would be correct. Better to use publicly available resources from the Home Office and if you need more specific advice, the expectation would be to use an immigration solicitor.

Your U.S. born child is not going to get settlement in the U.K. unless you make an application. The fact you have been spending time in the United States does put a risk over your own ILR status but as long as you can show evidence that your home is in the United Kingdom and no single trip outside exceeds two years you should be able to hold on to it. However, it may be recommended to avoid using phrases such as "living in the USA" and you should look into whether you have an ongoing liability to pay U.K. tax on income you earned while in the United States. That depends on how you meet the HMRC residence tests.

As others have pointed out, your British born son should be eligible for British citizenship right away but your other child would normally only be eligible for British citizenship based on the citizenship/immigration status of both parents.

[secret.simon]

Simply put, the UK Immigration status of children born abroad is in-line with that of the less-privileged parent. So, what is the UK immigration status of your significant other?

Your daughter will be eligible to apply for British citizenship when one parent and the child have got ILR and the other parent has British citizenship OR the child has ILR and both parents have got British citizenship.

See Page 27 onwards of the Nationality Guidance on Registration of Children.

[CR001]

According to the OPs previous posts, ILR was obtained in 2014.

indefinite-leave-to-remain/immigrating- ... l#p1211542

OP spouse does not hold ILR.

[secret.simon]

The fact you have been spending time in the United States does put a risk over your own ILR status but as long as you can show evidence that your home is in the United Kingdom and no single trip outside exceeds two years you should be able to hold on to it. However, it may be recommended to avoid using phrases such as "living in the USA" and you should look into whether you have an ongoing liability to pay U.K. tax on income you earned while in the United States. That depends on how you meet the HMRC residence tests.

Also, on another note, to emphasise the above point by JAJ, here is an earlier thread with my interpretation of the Rules about retaining ILR when you are abroad. It is not as clear-cut or simple as you may think.

[secret.simon]

Having given this query some thought, I have a follow-up question for the moderators, who are more learned in these matters.

The OP's original question was whether his son who was born in the UK is entitled to register as a British citizen while he is still abroad.

The entitlement to register is predicated on one of the son's parents, in this case the OP, currently having ILR in the UK.

However, as I have posted above, ILR is subject to ongoing evaluation of whether the holder is resident in the UK. Such an assessment is typically done when the applicant is attempting to enter the UK.

If the son (or the parents on the son's behalf) were to apply to register under Section 1(3), would that trigger an appraisal of the parent's ILR status, given that the application is coming from outside the UK, with a possible revocation or cancellation of the parent's ILR? In other words, would such an application (for registration under Section 1(3) from outside the UK) imperil the parent's ILR status?

[JAJ]

If the son (or the parents on the son's behalf) were to apply to register under Section 1(3), would that trigger an appraisal of the parent's ILR status, given that the application is coming from outside the UK, with a possible revocation or cancellation of the parent's ILR? In other words, would such an application (for registration under Section 1(3) from outside the UK) imperil the parent's ILR status?

There are in fact two questions here:

1. As I understand it, if a parent acquires settled status (ILR/PR + ordinary residence) and subsequently loses that status, it should not affect a U.K. born child's entitlement to British citizenship. Section 1(3) refers only to the occasion of a parent becoming settled and does not impose an additional condition that the parent remain settled at time of application for citizenship.

2. Would such an application prompt an investigation into whether the parent continues to hold ILR? In theory- anything is possible. In practice? Nationality Directorate are used to seeing more difficult immigration situations than this (example- Section 1(4) applications where there is no legal immigration status) and may take a view that it's not their role to refer cases onwards. Impossible to be certain without dealing with these kinds of situations every day. An unfortunate by-product of discussions on forums such as these is that the focus tends to be heavily on written laws/procedures (which cover 90%+ of scenarios) but can sometimes ignore the presence of unwritten processing culture. In other words- not just what the relevant authority can do, but what in practice they will do. However, it's best to minimize risk of adverse reactions where feasible.

The question [of retaining ILR] could just as easily be asked where an application is made to sponsor the spouse/daughter for U.K. settlement. However, that's a different branch of the Home Office. At a minimum the ILR holder should have available evidence that home is in the U.K. and that absence is temporary.

Further questions should best be discussed with an immigration solicitor- but only someone who is handling a large number of cases of this nature would be able to add any value.

[rthaker]

Thanks guys for all the advice and discussion on this topic.
I did get around to speak with Home Office today. They advise me that it will better to apply for my sons registration from within UK, as intention of staying in UK will be positively assessed. However he mentioned I could apply from outside UK, but intention of staying could be brought into question. Then I asked what if I would provide information about certainty of moving back to UK like job offer etc. He said it might be OK as long as you provide ample information, but I did get sense that he wanted to insist on applying within in UK and enter UK on visa at first.
My wife dont have ILR, she will enter as dependent.

From all this let us see this situation - I apply for my son registration and it gets rejected. What implications it could have, is it OK to reapply?

Basically all application material will be sent to UK, not UK embassy in USA, if I understand correctly.

thanks.

[CR001]

From all this let us see this situation - I apply for my son registration and it gets rejected. What implications it could have, is it OK to reapply?

Your son born in the USA does not qualify for citizenship and it will be refused and you will lose the fee of £973.

The born abroad child will require the same visa as your spouse and both will need ILR first

Your UK born child can be registered from the USA.

[Obie]

Thanks guys for all the advice and discussion on this topic.
I did get around to speak with Home Office today. They advise me that it will better to apply for my sons registration from within UK, as intention of staying in UK will be positively assessed. However he mentioned I could apply from outside UK, but intention of staying could be brought into question. Then I asked what if I would provide information about certainty of moving back to UK like job offer etc. He said it might be OK as long as you provide ample information, but I did get sense that he wanted to insist on applying within in UK and enter UK on visa at first.
My wife dont have ILR, she will enter as dependent.

From all this let us see this situation - I apply for my son registration and it gets rejected. What implications it could have, is it OK to reapply?

Basically all application material will be sent to UK, not UK embassy in USA, if I understand correctly.

thanks.

It can safely be said, that all what you were told on the phone was total rubbish. In line with Char, i accept that the UK born child will be fine, but the American born child will certainly not be fine.

[rthaker]

From all this let us see this situation - I apply for my son registration and it gets rejected. What implications it could have, is it OK to reapply?

Your son born in the USA does not qualify for citizenship and it will be refused and you will lose the fee of £973.

The born abroad child will require the same visa as your spouse and both will need ILR first

Your UK born child can be registered from the USA.

Thanks for reply. You guys are great and quick to reply.. Sorry I meant what if UK my born child was refused registration/citizenship for whatever reason like I am applying from USA etc (they can come up with all sort of crap). Can I still apply later. does it have any implications on second application (from within UK, surely I wont try second time from USA).


For my USA born daughter its clear that she will have to enter on visa.

[CR001]

A UK born child has an entitlement to register as British, assuming your ILR is still in tact at this stage.

[Richard W]

A UK born child has an entitlement to register as British, assuming your ILR is still in tact at this stage.

@CR001: Do you have any evidence that loss of ILR due to absence would affect the entitlement, or are you just playing safe?

[Obie]

it is an interesting question of law for which there is no authority.

I can say from experience, that i have been able to apply for a child whose father was facing removal under Section 32 of the UKBA Act 2007 for Registration, and it succeeded.

The provision is silent on what will happen if the parent lost their settled status after wards. It only concerns if the child's parent was settled after the birth.

Once can use the analogy, although not a perfect one, that if a father who was settled at time of birth lose their citizenship, does it invalidate the child's citizenship afterward.

Although i do accept that they are different situation.

Section 1(3) provide an automatic right to registration upon application, it can be argued that such automatic right cannot be lost by a subsequent event.

[CR001]

it is an interesting question of law for which there is no authority.

I can say from experience, that i have been able to apply for a child whose father was facing removal under Section 32 of the UKBA Act 2007 for Registration, and it succeeded.

The provision is silent on what will happen if the parent lost their settled status after wards. It only concerns if the child's parent was settled after the birth.

Once can use the analogy, although not a perfect one, that if a father who was settled at time of birth lose their citizenship, does it invalidate the child's citizenship afterward.

Although i do accept that they are different situation.

Section 1(3) provide an automatic right to registration upon application, it can be argued that such automatic right cannot be lost by a subsequent event.

Even if the child was born (2011) before the parent gained ILR (2015) Obie? It seems logic that for the entitlement to be there, the parent must hold the status at the time of registration (aware that nothing with HO involves logic )