Child born in UK

[safeery2k]

Hi,
My son was born in UK and at that time I did not have ILR (I'm on tier 1 General) in fact I have applied for ILR and waiting for the decision. We thought once I get my ILR we will apply for his MN1 but today I got a reply from UKBA why we did not include our son in application form. I told them I am going to apply for his MN1 but they said you need to read Paragraph 304 of Part 8 of the Immigration Rules which clarifies the rules on Children born in the UK. According to that paragraph my son is not a british citizen by birth and would need a leave to remain in UK.

https://www.gov.uk/government/uploads/s ... Part_8.pdf

So which form I need to use to get his leave? will he get ILR or visa until my wife?

Thanks,
Safeer

[Obie]

Well that provision does exist, but it is optional according to the guidance.And you can send this back to the caseworker.

They are not required leave to stay in the UK. Provision exist for applying for such leave.

Perhaps UKBA wants some money off you.

They are not here unlawfully, however, and are
not required to apply for leave to remain
(see ANNEX P, paragraph 11 if further guidance is required on this point)

.

[safeery2k]

Thanks for your reply. Basically we need to travel so he will need visa to enter UK so that's why asking the question.

[Obie]

Well you will need to use the same Set O form for your child and pay the necessary fees.

[Amber]

If the child has not had leave s(he) cannot be considered an overstayer or unlawful. If both parents are settled SET(F) is also acceptable. If your spouse isn't settled, leave May have to be in line with her.

[safeery2k]

UKBA is saying to fill out SET F form. He had a limited leave which expired in March this year so will he be considered over stayer?

[Amber]

Yes he is an overstayer but it's immaterial for a 1(3) application. Unless you intend to travel further leave isn't necessary.

[safeery2k]

Thanks, what do you mean by "immaterial for a 1(3) application"?

[Amber]

It means it wouldn't affect his MN1 application.

[safeery2k]

Amber you are confusing me

I thought I need to apply for SET F not MN1 as I didn't have ILR when he was born...

[Obie]

Amber is not confusing you.

SET (F) is applicable if you want to make an application for Leave to Remain.

MN1 is the application for Registration as British Citizen under Section 1 (3) of the Nationality Act 1981.

Amber simply said whether or not you make an application for leave using SET (F) , will not affect your child's registration as British.

[Amber]

Thanks Obie, perhaps I wasn't clear enough.

[Obie]

Amber you are confusing me

I thought I need to apply for SET F not MN1 as I didn't have ILR when he was born...

Another thing to add is, you are applying for registration on MN1, because you did not have ILR when he was born.

If you had ILR on the day the child was born, you will be applying for British passport directly, as the Child will be British at birth, by virtue of Section 1(1) (b) of the act.

[safeery2k]

Thanks guys...really appreciatiated