Extending child's UK visitor stay while citizenship pending

[benzy24]

I have a bit of an odd case. My wife and I are both UK citizens by descent. I also have US citizenship. My wife lived in the UK long enough to qualify to pass on citizenship to our son who was born in the EU. My son only has US citizenship at the moment.

We applied for his UK citizenship in April while still living in Europe with the help of a UK based law firm. We did his biometrics appointment in Europe as well.

We ended up moving to the UK at the beginning of June under the impression that with my son's US passport he would have 6 months to stay while his citizenship application was pending. With an April application date, we thought this would be plenty of time. The law firm we've been working with also thought this was fine.

At the border, however, we were asked the reason for the trip to the UK. We were honest about moving to the UK. They pointed out that with that intent, they could only grant my son 3 months, not the usual 6 months given to US passport holders.

His citizenship application is still pending and the 3 months are near expiration. At this point, I think our options are:

1. My wife take him to stay abroad somewhere until his citizenship is processed.
2. We try to extend his stay to 6 months through this process: https://www.gov.uk/standard-visitor/extend-your-stay

Option #1 is painful because my wife and son would be separated from me for 2-3 months under the worst case scenario. I won't be able to travel with them due to responsibilities in the UK. This is also the most expensive option.

Option #2 seems promising and worth the fee, but I worry it could negatively impact his citizenship application or he would be denied extension because our intent is clearly to have him live here.

Are there other options I should explore? Offices/people to contact for help?

Is Option #2 safe to try? He's allowed to stay here while the extension decision is pending which can take up to 8 weeks.

I'm also trying to get advice from the law firm, but they can be quite slow to reply and this advice might fall outside the citizenship application package I paid for.

Thank you for any advice/ideas!

[vinny]

Don’t worry. How old are your children? They will not penalise a child under 18 for overstaying.

[benzy24]

Don’t worry. How old are your children? They will not penalise a child under 18 for overstaying.

That's quite hopeful. He is only 18 months old.

So we could potentially just ignore the 3 months limit?

[vinny]

Basically yes.

Moreover, if they happen to refuse to register him under Section 3(2), then after 3 years residence in the UK with you, he will also be entitled to register under section 3(5).

[Ticktack]

It's a sticky one. Your child has not right to access the NHS as it currently stands. If child overstays and y'all decided to travel out of the UK prior to Citizenship approval, child could have a problem re-entering.

Why not exit and apply for a dependant visa for the child, pending the outcome of the Citizenship approval.

I'm never a fan of ignoring immigration officers. They're potentially the law!

Bit of a pickle here.

[benzy24]

Basically yes.

Moreover, if they happen to refuse to register him under Section 3(2), then after 3 years residence in the UK with you, he will also be entitled to register under section 3(5).

I don't want to jinx myself, but I'm pretty confident he'll be registered under Section 3(2). My wife's proof of 3 continuous years in the UK is solid. I'll be shocked if we're denied.

I think my big concern would be overstaying so long it jeopardises any visa applications needed to get him to 3 years residence and register him under Section 3(5). I can't imagine letting him overstay for 3 years even if they don't punish children for overstaying. It's also more fees that we shouldn't have to pay considering he's eligible for UK citizenship now and we've paid for 3(2) already.

I just found that even for adults, there's effectively no punishment for overstaying up to 30 days according to this: https://immigrationlawyers-london.com/b ... -to-do.php

An extra 30 days would make a big difference in potentially getting a citizenship decision before having to take other steps.

[vinny]

Actually as a visitor, he isn’t eligible for non-free NHS charges anyway. So, with regarding the NHS, he won’t be worst off than he is now.

[benzy24]

It's a sticky one. Your child has not right to access the NHS as it currently stands. If child overstays and y'all decided to travel out of the UK prior to Citizenship approval, child could have a problem re-entering.

Why not exit and apply for a dependant visa for the child, pending the outcome of the Citizenship approval.

I'm never a fan of ignoring immigration officers. They're potentially the law!

Bit of a pickle here.

Indeed it's a real pickle.

We don't want to travel outside the UK anytime soon anyway. Flying with a toddler is a nightmare regardless of immigration status!

Applying for a dependant visa would be another £1k plus the costs of taking him abroad. This would also separate the family while this is all processing. And his citizenship could be approved any day now that it's been ~4 months already.

We're totally on the same page about concerns ignoring immigration officers. I don't want to cause any trouble that could impact my son. Although the documentation Vinny provided is promising and the link I just posted claims overstaying up to 30 days doesn't even really impact adults.

[benzy24]

Actually as a visitor, he isn’t eligible for non-free NHS charges anyway. So, with regarding the NHS, he won’t be worst off than he is now.

Yeah the NHS issue is the least of my concerns right now. He had a check just before we left Europe at the beginning of June and he's in great health. We have private medical options lined up if/when needed. We even managed to get him a vaccine for free despite his status.

[Ticktack]

Actually as a visitor, he isn’t eligible for non-free NHS charges anyway. So, with regarding the NHS, he won’t be worst off than he is now.

That's true. But he's been given just 3 months to stay here. 2 months already gone.

then after 3 years residence in the UK with you, he will also be entitled to register under section 3(5).

This is the pushing it part.

When kids go to nursery, they mix with other kids. It's a beehive of germs in those places as their immune is low.

I know it shouldn't come to this, but I like looking at the bigger picture.

[benzy24]

Perhaps I'm being too optimistic, but this seems like it might apply to my son's case. He is waiting for a decision even if it's for citizenship instead of a visa as this explains.

Solicitor weblink removed by moderator.

What if my visa expires after I’m waiting for a decision on a Home Office application?
You would not be considered an overstayer if your visa expires while you’re awaiting a decision on a Home Office application to remain in the UK, provided the application is valid. This could be a visa application, or an application for appeal or Judicial Review. These circumstances are covered by the Section 3c leave provisions of the Immigration Act 1971, which render the individual’s leave valid until their application is either decided or withdrawn.

However, Section 3c leave may not apply where an application is considered invalid. This could be due to ineligibility under the relevant visa requirements, failure to pay the correct application fee, or failure to submit the correct documentation.

[benzy24]

Actually as a visitor, he isn’t eligible for non-free NHS charges anyway. So, with regarding the NHS, he won’t be worst off than he is now.

That's true. But he's been given just 3 months to stay here. 2 months already gone.

then after 3 years residence in the UK with you, he will also be entitled to register under section 3(5).

This is the pushing it part.

When kids go to nursery, they mix with other kids. It's a beehive of germs in those places as their immune is low.

I know it shouldn't come to this, but I like looking at the bigger picture.

Agreed. I don't want him to have a questionable status for 3 years. Considering we applied for his citizenship in April, it would be a shock if this situation lasted past the end of the year. He's not going to nursery at the moment and we can live with private medical options until he's sorted.

[CR001]

Perhaps I'm being too optimistic, but this seems like it might apply to my son's case. He is waiting for a decision even if it's for citizenship instead of a visa as this explains.

Solicitor weblink removed by moderator.

What if my visa expires after I’m waiting for a decision on a Home Office application?
You would not be considered an overstayer if your visa expires while you’re awaiting a decision on a Home Office application to remain in the UK, provided the application is valid. This could be a visa application, or an application for appeal or Judicial Review. These circumstances are covered by the Section 3c leave provisions of the Immigration Act 1971, which render the individual’s leave valid until their application is either decided or withdrawn.

However, Section 3c leave may not apply where an application is considered invalid. This could be due to ineligibility under the relevant visa requirements, failure to pay the correct application fee, or failure to submit the correct documentation.

This doesn't apply to citizenship applications, as they are not an immigration applications.

Section 3C rule applies only to immigration route applications.

[vinny]

If you really want to, then he may also apply for SET(F) shortly before expiry of leave, just to prevent overstaying. Mention a change of circumstances was a delay in his Citizenship registration decision. Choose a late date to give biometrics. If they grant his citizenship prior to biometrics appointment, then just withdraw his SET(F) application and get a refund.

[benzy24]

If you really want to, then he may also apply for SET(F) shortly before expiry of leave, just to prevent overstaying. Choose a late date to give biometrics. If they grant his citizenship prior to biometrics appointment, then just withdraw his SET(F) application and get a refund.

That could be a safe option.

That costs at least £2,404 from what I can tell. Is that right? How far out can you realistically push out biometrics? Considering he's done biometrics already for his citizenship, they may try to re-use those and that would only give me 7 days to withdraw my application before I lose the chance for a refund.

I'd be inclined to try for the £1k visitor extension fee I linked to in my original post instead to buy ourselves another 3 months.

Or just overstay less than 30 days and only go abroad if those extra 30 days are coming to an end.

Tricky this situation. If only I had some sense of when a citizenship decision would be made. I could hear back today or in 3 months.

[benzy24]

Perhaps I'm being too optimistic, but this seems like it might apply to my son's case. He is waiting for a decision even if it's for citizenship instead of a visa as this explains.

Solicitor weblink removed by moderator.

What if my visa expires after I’m waiting for a decision on a Home Office application?
You would not be considered an overstayer if your visa expires while you’re awaiting a decision on a Home Office application to remain in the UK, provided the application is valid. This could be a visa application, or an application for appeal or Judicial Review. These circumstances are covered by the Section 3c leave provisions of the Immigration Act 1971, which render the individual’s leave valid until their application is either decided or withdrawn.

However, Section 3c leave may not apply where an application is considered invalid. This could be due to ineligibility under the relevant visa requirements, failure to pay the correct application fee, or failure to submit the correct documentation.

This doesn't apply to citizenship applications, as they are not an immigration applications.

Section 3C rule applies only to immigration route applications.

I see. Thanks for that. I guess I was too optimistic after all.

[vinny]

How far out can you realistically push out biometrics?

You get 45 working days from submission to enrol his biometrics.

But note Age

Children under the age of 5 are exempt from having to provide fingerprint biometrics, but they must provide a digitised image of their face

[benzy24]

How far out can you realistically push out biometrics?

You get 45 working days from submission to enrol your biometrics.

45 days is pretty good. Thank you.

I'd still be concerned about the potential fee lost before 45 days if they determine they can re-use the biometrics he did in Europe for his citizenship application.

At this point, I'm leaning towards one of these options:

1. Apply for a 3 month visitor extension for £1,000
2. Take advantage of the 30 day overstay w/o penalty and take him abroad only if there's no decision before those 30 days expire

Still considering the "do nothing" option you posted at the start of this thread. It does make me rather nervous even if the documentation says he can't be punished.

[vinny]

Actually, the 30 days overstay entry clearance restriction applies only to adults.

9.8.4. In paragraphs 9.8.1. and 9.8.2, a person will only be treated as having previously breached immigration laws if, when they were aged 18 or over, they:
….

[benzy24]

Actually, the 30 days overstay entry clearance restriction applies only to adults.

9.8.4. In paragraphs 9.8.1. and 9.8.2, a person will only be treated as having previously breached immigration laws if, when they were aged 18 or over, they:
….

Right. It does seem likely it wouldn't affect anything for him considering his age. This is why I'm still considering the "do nothing" option.

It just "feels" like we're doing something wrong. Fortunately the law has nothing to do with my feelings.

[benzy24]

I'm having trouble confirming this on a UK gov website, but I'm seeing posts on other forums stating that overstaying doesn't affect family visa applications. So considering he's both under 18 and we could still apply for a family visa for him if his citizenship somehow got refused, the "do nothing" option is becoming more and more appealing.

It just seems too easy to be true...

[contorted_svy]

Children are not punished for overstaying. The only issue you may potentially run into is that you applied for his citizenship from outside the UK and those applications are known to take longer than the standard processing time. I would put in place a private health insurance for your child as you may have to wait for a while.

[benzy24]

Children are not punished for overstaying. The only issue you may potentially run into is that you applied for his citizenship from outside the UK and those applications are known to take longer than the standard processing time. I would put in place a private health insurance for your child as you may have to wait for a while.

In hindsight, I definitely would have applied for him after coming to the UK. Oh well.

Our lawyer told us to expect 2-6 months and obviously knew we were applying from outside the UK. Should we be expecting more than 6 months?

If it was likely to be more than 6 months, this would increase my desire to do nothing. We don't want to split the family for so long with them abroad.

Noted on the health insurance. We had already been considering that. We just thought this citizenship application would be faster.

[contorted_svy]

There is no way to know how long an individual application will take - however registrations from abroad do seem to take longer than 6 months. Unfortunate that your lawyer advised you differently. There is a member that is has been waiting for an outcome with a case that is similar to yours for more than a year.

[benzy24]

There is no way to know how long an individual application will take - however registrations from abroad do seem to take longer than 6 months. Unfortunate that your lawyer advised you differently. There is a member that is has been waiting for an outcome with a case that is similar to yours for more than a year.

It is unfortunate. I wonder if this law firm hasn't actually handled many applications from outside the UK.

Do you have a link to that member's thread who has been waiting more than a year? Was it also for a child?