MN1 3(5) - Refused due to not being 'settled'

[Stowtjie]

Hi there,

I wonder if anyone can assist me?

I applied for my two children to get their British Citizenship under MN1 3(5) based on the fact that their grandfather was a full BC (born in UK) and their father is a BC by descent (I am a South African Citizen). The children were born in South Africa. We have all been living permanently in the UK since Nov 2013 (4 years now) and did the application in Sep 2017 (3 years 10 months after arriving).

We have been refused on the grounds that the children and I are not 'settled' under UK immigration law, but I thought the idea was we had to be resident in the country for a continuous 3 years? I have read and re-read the guidance for the MN1 3(5) and do not see where it says 'settled', otherwise I would never had applied in the first place.

Please can someone help - I don't understand why we had to prove we were resident in the country for at 3 years if we actually had to have ILR?

Thanks so much!

[CR001]

Did you enter the UK on a visa or with a British passport?

What evidence did you submit with your application?

How old are the children?

[CR001]

Also, how much absence has there been in the last 3 years prior to applying?

Can you post the exact wording of the refusal, taking out any personal information?

[Stowtjie]

My children and I entered the UK on dependent visas under my husband's British Passport. In September 2016 we applied for limited Leave to Remain, which was granted for 30 months.

We have only been absent from the UK for a 3 week trip to Australia in April this year.

With the application I submitted the forms as well as:

- my husband and my marriage certificate
- our children's unabridged birth certificates
- my husband's passport
- our current BRP cards (for my children and I)
- my husband's parent's marriage certificate (his dad was born in the UK)
- my husband's fathers birth certificate (again, he was born in the uk)
- my husband's father's death certificate (he died in 1980 in South Africa)
- proof of residence (utility bills etc) for the previous 3 years

Everything I could think of really.

The exact wording of the refusal is:

"Normally a minor will not be registered if, as appears in this case, they are not 'settled' in the UK as defined by the immigration laws.

Also, a minor will not be registered if, as also appears in this case, one of their parents is not 'settled' in the UK as defined by the immigration laws.

These expectations are not met. We have therefore considered reqistration exceptionally but do not consider there are sufficient grounds to register and their applications are refused."

[Stowtjie]

Sorry, and my children are 9 and 7 years old.

[Stowtjie]

Oh my goodness! I just realised that they are referring to me being denied under section 3(1), we applied under 3(5)!

[vinny]

I think that they were wrong to refuse the children. They may be confused with entitlement under Section 3(5) against discretion under Section 3(1).

[Stowtjie]

I am sure that I applied under 3(5), and it is even referred to in my covering letter (which I have a copy of on my pc), but I didn't take a copy of the application forms, and they obviously weren't returned. So can't be 100% sure, but I am so so sure I wrote 3(5) on the form.

Will they give me a copy of the forms if I ask? They appear to have refused because my children are not 'settled' and are referring to MN1 3(1) and not 3(5) - and I don't think we qualify under 3(1) anyway.

What should I do now?

[vinny]

Application for review when British citizenship is refused: form NR.

[Stowtjie]

OK, sorry, me again.

I am so confused, and I apologise for the confusion I may be causing.

They referred to British Citizenship under section 3(1) of the British Nationality Act 1981 - so they aren't referred to that as the part of the MN1 form...

So they must be correctly referring to refusing me under MN1 3(5) as was my application.

OK - so in this instance, are they correct?

[Stowtjie]

I want to appeal - but it's a cost of £320 per child (£640 in total)! That seems really unfair if they've made an error on my application, and what if I'm refused again?

Do I need to get a immigration lawyer involved?

We are a year off getting our IRL anyway, but this just seems unfair?

Surely if they've made a mistake I shouldn't be made to pay again?

[Stowtjie]

Could I ask regarding the application under MN1 3(5) - does this fall under an 'entitlement to register' as a BC or does it fall under the 'discretion of the Secretary of State' to register as a BC?

[vinny]

Whilst there is no legal right of appeal or review of nationality decisions, you may ask for it to be reconsidered if you disagree with the reason for refusal. There is a small charge for reconsideration which will be returned (less the citizenship ceremony fee where appropriate) if the decision is reversed and your application is approved.

[vinny]

entitlement under Section 3(5)

[Stowtjie]

Thank you Vinny, I shall call them tomorrow.

[Obie]

I think the position of the grandparents are not relevant to section 3(5), although it may be in relation to 3(2) registration.

I agree the refusal was wrong.

As they have clearly made a mistake, i don't think it is appropriate to pay for a reconsideration.

In my opinion a Pre_Action protocol will focused minds, and give you an idea of their position within 2 weeks.

[Stowtjie]

Thank you Obie,

Could you explain what a Pre_Action protocol is?