need advice on child born from second relationship while married

[wahi66]

I still married to eea national when the child was born..and the mother has leave to remain already...I add my name on birth certificate a month after I got my permanent residence and that is when the child was 3years

in which month and year you had you baby and then PR and then child registration???

I had the baby 2014 while am still married to my eea , I divorced 2016 then got my permanent residence 2017 march nd add my name on the birth cert April 2017 , applied for child registration august 2017 via Ncs got d passport Nov 2017.. hope this clears

thanks buddy

[wahi66]

okay Guys

So today i went to two different solicitors and both have them gave me two completely different paths.
kindle share your opinion and experience if you can on both situation.

1st Solicitor:

she had similar case before.
she advised me MN1 route either postal service or NCS service.
About DNA she said its up to me bcoz HO didn't asked in the last case however if you want to avoid any possible delay or refusal then send the DNA along with application just an extra evidence.
I can do the whole paper work myself as i did with my RC and PR time and so she said she can do the final checks to the application before submission which including draft covering letter of the case and will be my legal solicitors for £400+vat. or without legal representation £300+vat.

2nd Solicitor:

this solicitor asked me to go for extended family member as i hv got my PR under EEA national.
this guy said if i can get my EEA partner's statement regarding knowing the child etc long story and also statement from child's mother consenting connection with father and her EEA partner (happy connection story) then he can apply for EEA extended family member as I am taking half responsibility of the child so the application fee would be just £65. He said he can explain the home office to consider this case under EEA extended family route rather then MN1 which will save lot of money and also less chances of refusal. but in the end he asked me his fee of £1200 which is higher then MN1 category.


Please need your comments

kind regards

waiting for advice please

[Obie]

It seems like we have advised you on the different options.

The second of the advise is senseless. Firstly it is wrong in law as your child is a family member and cannot be an extended family member. Your child has rights under EU law in the UK.

If you go for option 2, it is hard to see how it will assist mother, whom I believe you are seeking to regularise aswell.

[wahi66]

just got reply from DNA centers and they said due to change in law only HO will directly advise you after submitting application which center and company to use for test if they believe they need to run the DNA test.

[wahi66]

It seems like we have advised you on the different options.

The second of the advise is senseless. Firstly it is wrong in law as your child is a family member and cannot be an extended family member. Your child has rights under EU law in the UK.

If you go for option 2, it is hard to see how it will assist mother, whom I believe you are seeking to regularise aswell.

thanks the second option seems not right to me as well.

mother is not priority really coz she got current leave to remain after which she will get ILR own her own.

SO i guess MN1 is the right option for the child??? and shall i hired the solicitor services to check the case or just go straight to the council NCS and they will do the same job for me???
Legal representation is better to take or its just waste of money and time??

[Dapsondapson1]

@wahi66..For all what you hv wrote here.. I personally don't think you will have a problem on this issue and you just want to waste your money if you hire a lawyer at this stage... the only thing that I think HO can advise you to do the DNA if they think you want to regularise the mother of the child after the child obtain the passport which is not on your case now as you've said the mother has leave to remain..I think the case worker will use descretion on this..

[wahi66]

@wahi66..For all what you hv wrote here.. I personally don't think you will have a problem on this issue and you just want to waste your money if you hire a lawyer at this stage... the only thing that I think HO can advise you to do the DNA if they think you want to regularise the mother of the child after the child obtain the passport which is not on your case now as you've said the mother has leave to remain..I think the case worker will use descretion on this..

thanks buddy. I hv decided to go by myself rather hire a lawyer.

[ariskar]

The EEA(PR) letter that the father obtained through his marriage would indicate the date since when the permanent residence is applicable. There are two scenarios to the best of my understanding.

* If the father held permanent residence rights at the time the other (officially unrelated) woman gave birth to the child (per the approval letter), then the child is already a British citizen. The father's EEA(PR) certificate/card, the HO acceptance letter for EEA(PR) and a DNA test would suffice to apply for passport directly to HMPO.
** If the father did not hold permanent residence when the child was born, the child should register as a BC under MN1 Section 1(3). This can be applied directly as the parent is a settled (PR) person. A DNA test will most likely also be required. This is a costlier and likely an application with longer waiting times.

I would strongly suggest that BC is applied before the mother's Tier 4 (student) visa expires and the mother leaves the country. The mother is most likely to be the main carer for the child and once the child moves abroad without obtaining BC, it may jeopardize its chances to claim BC through registration for a complex case as this is.

This is the opinion of the poster and not formal immigration advice.

[wahi66]

The EEA(PR) letter that the father obtained through his marriage would indicate the date since when the permanent residence is applicable. There are two scenarios to the best of my understanding.

* If the father held permanent residence rights at the time the other (officially unrelated) woman gave birth to the child (per the approval letter), then the child is already a British citizen. The father's EEA(PR) certificate/card, the HO acceptance letter for EEA(PR) and a DNA test would suffice to apply for passport directly to HMPO.
** If the father did not hold permanent residence when the child was born, the child should register as a BC under MN1 Section 1(3). This can be applied directly as the parent is a settled (PR) person. A DNA test will most likely also be required. This is a costlier and likely an application with longer waiting times.

I would strongly suggest that BC is applied before the mother's Tier 4 (student) visa expires and the mother leaves the country. The mother is most likely to be the main carer for the child and once the child moves abroad without obtaining BC, it may jeopardize its chances to claim BC through registration for a complex case as this is.

This is the opinion of the poster and not formal immigration advice.

thanks for your comments my friend and i am falling under second option of MN1 but what i am concerning about is what are the worst case scenarios?? what could be the consequences if things goes other way around?? any sward hanging on my status due to this application?? I was also looking for the same cases here in this board but couldn't find many case similar to me expect one but in that case the divorce was applied before the PR and child application.

[wahi66]

can someone be kind enough to refer the similar type of cases to me so i can get as much information as possible?? some links please here or somewhere else.

[malikuk]

HI

Re: DNA Test

one of my brother is dealing a case for his child passport application, DNA center now a days saying Home Office will Contact us directly for DNA test, however if you ask them you need for Legal Purpose them they will entertain you without any problem.

Hope it helps.

[wahi66]

Hello guyz again

I have some questions while filling up the forms of MN1 child application.

question 1.3: child ILR date(child does not have any leave as it was born here and since he is here)


As the child born in UK
Section 2
question 2.1: Date and place of child's first arrival in the UK??

question 2.2: 5 years address??

Can someone please put some light on it through their experience or better understanding??

[vinny]

1.3 Not applicable.

2.1 Child arrived in the UK when child was born in the UK.

2.2 Not applicable.

[wahi66]

1.3 Not applicable.

2.1 Child arrived in the UK when child was born in the UK.

2.2 Not applicable.

thanks for your quick response. could you please kindly check answers of

Q 1.1 Section 1 (3)
Q 1.2 N/A (as child does not have any immigration reference)

2.4 United kingdom or leave it blank

and finally Section 6.
In Section 6 only few question applied on the child

6.1 no
6.12 no
6.16 no
6.17 under 16years
6.18-6.20 father detail enters

[ariskar]

wahi66, I do not see how this could affect your application and status. If I was in your position I would apply for naturalisation for myself (i.e. yourself) too, on the basis of EEA(PR) plus 1+ years. EEA(PR) will be rendered invalid after the Brexit vote and would have to be exchanged to British law settlement status. Most likely from the Brexit date or maybe even earlier (hint in media: mid 2018), you would need the new settled status to apply for citizenship.

I do not think your out of marriage child can affect your current status considering you already hold PR.

To be on the "safest" side of things, though I see little to no risk to your case, I would naturalize (i.e. for yourself) and then apply through MN1 for the kid, at least 6 months prior to the mother's visa expiry / leaving the country (if it is the case).

I hope this makes sense. Your naturalisation process should be straightforward and could be done by yourself without external help (cost 1350 - 1500 gbp, depending on application type, ceremony and passport size, etc). For your kid's MN1 I would most likely use legal advise as it is a less common case.

Lastly, as proven by ECJ, you retain your EEA derived rights after naturalising as BC, for as long as they are applicable on the territory of the UK.

I hope that makes sense and it is not legal advice, just the opinion of the poster. Good luck

[wahi66]

wahi66, I do not see how this could affect your application and status. If I was in your position I would apply for naturalisation for myself (i.e. yourself) too, on the basis of EEA(PR) plus 1+ years. EEA(PR) will be rendered invalid after the Brexit vote and would have to be exchanged to British law settlement status. Most likely from the Brexit date or maybe even earlier (hint in media: mid 2018), you would need the new settled status to apply for citizenship.

I do not think your out of marriage child can affect your current status considering you already hold PR.

To be on the "safest" side of things, though I see little to no risk to your case, I would naturalize (i.e. for yourself) and then apply through MN1 for the kid, at least 6 months prior to the mother's visa expiry / leaving the country (if it is the case).

I hope this makes sense. Your naturalisation process should be straightforward and could be done by yourself without external help (cost 1350 - 1500 gbp, depending on application type, ceremony and passport size, etc). For your kid's MN1 I would most likely use legal advise as it is a less common case.

Lastly, as proven by ECJ, you retain your EEA derived rights after naturalising as BC, for as long as they are applicable on the territory of the UK.

I hope that makes sense and it is not legal advice, just the opinion of the poster. Good luck

Hello Ariskar
thanks for your detail comments and advise. just few questions

1. how can i apply for my naturalization as i just got PR in Nov 2017. so accordingly to law i need to wait until Nov 2018 to apply for citizenship.

2. I find more information here rather from lawyers as i hv seen 5 solicitors and I find them less informative and on surprise note i was more informative then solicitors. I dont know weather they were pretending to be like that so they can hold the secrets or they really did not know anything like this.

3. what do you mean by ECJ judgement on EEA derived rights??

4. My PR says valid until 2027 so it means if Brexit happens? I will have to get another type or permanent resident like ILR???


regards

[wahi66]

Hello Guys
should i use different address for child and mother or mine address would be enough as i am the one who is applying???
Can I use my address for the child or it has to be mother address?? as on the birth certificate my address has been mentioned?

[wahi66]

Hello

is there anyone who can advise on the use of address question above please???

[ariskar]

Hello Ariskar
thanks for your detail comments and advise. just few questions

1. how can i apply for my naturalization as i just got PR in Nov 2017. so accordingly to law i need to wait until Nov 2018 to apply for citizenship.
Per your post, you got PR card in Nov 2017. That does not mean that you hold PR rights from Nov 2017. You hold PR rights from when the 5 year PR qualifying period was concluded. This is detailed in the approval letter of EEA(PR) application. If one year has passed, you can apply straight after you obtained the PR card/certificate. Your EEA(PR) approval letter by Home Office with the date will be enough proof, if 1 year has passed since the date on that letter (not to be confused with approval or card issue dates). At what date the EEA national 5 year qualifying period was reached?

2. I find more information here rather from lawyers as i hv seen 5 solicitors and I find them less informative and on surprise note i was more informative then solicitors. I dont know weather they were pretending to be like that so they can hold the secrets or they really did not know anything like this.
There are always better and worse solicitors, or malicious ones that may profit of taking you through a longer immigration route than needed in order to get more fees paid. This is why it is recommended as much as possible and able to understand to double check legislation and consult as many free sources (including this forum).
3. what do you mean by ECJ judgement on EEA derived rights??
The ECJ (court) ruled that after one becomes naturalised, he retains the direct family sponsorship rights under EEA law. It means that if you become British, you do not stop having derivative rights as EEA permanent resident. This is most likely going to be refused by HO, but a precedent is made in the court that means you may still sponsor your child through the EEA route after becoming British yourself. This would be enforceable until the Brexit day (29 March 2019), maybe extended based on Brexit deal.
4. My PR says valid until 2027 so it means if Brexit happens? I will have to get another type or permanent resident like ILR???
Your PR photocard / BRP expires. Your PR right does not expire. You only lose PR right if continously abscent (no single day visit/stay in the UK) for a period of two years. However (!), after Brexit you would have to apply for settlement, apparently free if exchanging your EEA(PR) card with a settlement (ILR) equivalent for EEA citizens and family members under European law. This is still in the making and subject to change.

regards

Answers quoted in red, to the best of my knowledge. Good luck!

[wahi66]

Hello Ariskar

thanks again Ariskar for your detailed knowledge on this issue. Seems like you need to apply for professional solicitor.

ok well as per the Home office letter it says PR acquired on 10 Nov 2017 so i guess i need to wait until Nov 2018 to get eligible for the citizenship.

However based on your given information, this mean I as a PR holder of EEA family member, can also now sponsor my direct family member if i want. which mean my parents or brother or sister can apply under family member??

so instead of visit visa now they can get family permit??

kind regards

[ariskar]

Hello Ariskar

thanks again Ariskar for your detailed knowledge on this issue. Seems like you need to apply for professional solicitor.

ok well as per the Home office letter it says PR acquired on 10 Nov 2017 so i guess i need to wait until Nov 2018 to get eligible for the citizenship.

However based on your given information, this mean I as a PR holder of EEA family member, can also now sponsor my direct family member if i want. which mean my parents or brother or sister can apply under family member??

so instead of visit visa now they can get family permit??

kind regards

I think direct family for this purpose are only spouse and children. I heard of rare cases of parents through EEA route, not siblings. Someone else please correct me if wrong.

I'd recommend you apply for citizenship through NCS (you keep originals passport-PR to use for your child).

[wahi66]

Hello Ariskar

thanks again Ariskar for your detailed knowledge on this issue. Seems like you need to apply for professional solicitor.

ok well as per the Home office letter it says PR acquired on 10 Nov 2017 so i guess i need to wait until Nov 2018 to get eligible for the citizenship.

However based on your given information, this mean I as a PR holder of EEA family member, can also now sponsor my direct family member if i want. which mean my parents or brother or sister can apply under family member??

so instead of visit visa now they can get family permit??

kind regards

I think direct family for this purpose are only spouse and children. I heard of rare cases of parents through EEA route, not siblings. Someone else please correct me if wrong.

I'd recommend you apply for citizenship through NCS (you keep originals passport-PR to use for your child).

thanks bro for your very useful info. Wish you very happy holidays