Born-abroad child w/o ILR mother not settled - MN1 3(1) refused

[baber2013]

I am in similar situation:
1. Child age 4 born in Canada w/o ILR parents holds Canadian passport and living in the UK as dependent since 2011 since she was 2 months old.
2.Father granted ILR on 10 year basis in Sept 2015
3. Mother currently on FLR as dependent spouse (since Dec 2015) and needs to complete 5 years on her on before eligible for ILR.
4. Application for child's registration MN1 refused (in Jan 2016) as father is not citizen and mother not settled. Currently child is on previous dependent visa which is valid until Aug 2016. Child's sibling born in UK has been granted British citizenship.
5. I do not want to apply for FLR for child as she will have to complete 5 years independently before she is eligible to apply for ILR. I want to do another registration application once father applies for naturalization in Aug 2016 on the grounds that one parent is now a BC.

What are my chances of success as mother would still not hold ILR?
Is there any way I can apply for child's ILR if registration is too risky?

Any help would be greatly appreciated.

[baber2013]

Hi here is a brief background of my situation.
1. I have been living in the UK as a dependent since Feb 2011, here is the breakdown from Feb 2011-Aug 2012 as dependent of Tier 4 followed by Tier 2 dependent from Aug 2012 - Dec 2012 Currently I am on FLR (M) valid for 2.5 years. I hold Canadian passport
2. Husband has been granted ILR in Sept 2015 on 10 year basis.
3. HO has said that Tier 4 dependent stay does not count and as I got my Tier 2 dependent visa after July 2012 I have to complete further 5 years on FLR before I can apply for ILR. That means I could apply for ILR in Dec 2020!
4. I was advised by a solicitor that I could possibly apply for ILR basically requesting that HO exercise discretion and count my stay in the UK since Feb 2011 till Feb 2016.
5. Is there such a thing? Any advice would be greatly appreciated especially since me getting ILR would greatly determine child born outside UK getting BC.

[secret.simon]

2. Husband has been granted ILR in Sept 2015 on 10 year basis.

since me getting ILR would greatly determine child born outside UK getting BC.

You have been incorrectly advised.

If a child is born within the UK and either one of the parents has ILR, the child is born a British citizen. As your husband has ILR, your child would be born a British citizen if born in the UK.

If a child is born outside the UK, it has the same status as that of the less-privileged parent, unless one of the parents is a British citizen, in which case the child is a British citizen by descent.

Even if both the parents have ILR and the child is born abroad, it does not get British citizenship, but gets ILE (ILR granted abroad), as that is the status of the less-privileged parent. Such a child is eligible to be registered for British citizenship when the second parent naturalises.

As regards getting ILR, as your husband got his ILR based on 10 years residence, it has reset your ILR clock to zero and you will only be eligible for ILR in 2020, as you mentioned.

You have not mentioned any specific reason why the Home Office should exercise discretion in your case. It is perfectly normal and acceptable for a person to spend up to 10 years before getting ILR (look at the case of your own husband). If you are asking for discretion, why do you need to be treated differently from others in your position? What is your case?

[CR001]

I am in similar situation:
1. Child age 4 born in Canada w/o ILR parents holds Canadian passport and living in the UK as dependent since 2011 since she was 2 months old.
2.Father granted ILR on 10 year basis in Sept 2015
3. Mother currently on FLR as dependent spouse (since Dec 2015) and needs to complete 5 years on her on before eligible for ILR.
4. Application for child's registration MN1 refused (in Jan 2016) as father is not citizen and mother not settled. Currently child is on previous dependent visa which is valid until Aug 2016. Child's sibling born in UK has been granted British citizenship.
5. I do not want to apply for FLR for child as she will have to complete 5 years independently before she is eligible to apply for ILR. I want to do another registration application once father applies for naturalization in Aug 2016 on the grounds that one parent is now a BC.

What are my chances of success as mother would still not hold ILR?
Is there any way I can apply for child's ILR if registration is too risky?

Any help would be greatly appreciated.

The child is not eligible for British citizen, not even if/when the father gets British Citizenship. The child is expected to hold ILR first.

You really should have included the child in your FLR(M) application. Whether you want to apply for FLR(M) or not, is not really a choice or decision you can make. The childs current visa is not valid if still on Tier 1 G dependent.

Your child born abroad will qualify for ILR at the same time as you if you get FLR(M) for the child.

There is no cheap or easy way to get around the rules.

You will lose your fee again forMN1 if you apply again.

[CR001]

I am in similar situation:
1. Child age 4 born in Canada w/o ILR parents holds Canadian passport and living in the UK as dependent since 2011 since she was 2 months old.
2.Father granted ILR on 10 year basis in Sept 2015
3. Mother currently on FLR as dependent spouse (since Dec 2015) and needs to complete 5 years on her on before eligible for ILR.
4. Application for child's registration MN1 refused (in Jan 2016) as father is not citizen and mother not settled. Currently child is on previous dependent visa which is valid until Aug 2016. Child's sibling born in UK has been granted British citizenship.
5. I do not want to apply for FLR for child as she will have to complete 5 years independently before she is eligible to apply for ILR. I want to do another registration application once father applies for naturalization in Aug 2016 on the grounds that one parent is now a BC.

What are my chances of success as mother would still not hold ILR?
Is there any way I can apply for child's ILR if registration is too risky?

Any help would be greatly appreciated.

@secret.simon - above from the BC section, now merged with this thread, for a better understanding of the OPs plan.

[baber2013]

Thank you for the responses.... my solicitor gave me high hopes that the child could be naturalized when my husband got ILR but since the refusal of MN1 I don't know what to do. I called UKVI and was told that child can be naturalised with father even though other parent is not settled so now I am even more confused. The last thing I want is another refusal and wasted fees.
The MN1 refusal grounds are stated below:
" Neither parent is British citizen." "She is not settled in the UK as defined by immigration laws." "Also minor will not be registered if, as appears in this case one of their parents is not settled in the UK as defined by immigration laws."

Seems like FLR is the only way if there is any other way I can try please advice.

[baber2013]

Thank you for the responses.... my solicitor gave me high hopes that the child could be naturalized when my husband got ILR but since the refusal of MN1 I don't know what to do. I called UKVI and was told that child can be naturalised with father even though other parent is not settled so now I am even more confused. The last thing I want is another refusal and wasted fees.
The MN1 refusal grounds are stated below:
" Neither parent is British citizen." "She is not settled in the UK as defined by immigration laws." "Also minor will not be registered if, as appears in this case one of their parents is not settled in the UK as defined by immigration laws."

Seems like FLR is the only way if there is any other way I can try please advice.

[CR001]

There is no other way. She is born abroad so has not entitlement to register at all and is expected to hold ILR (settled status) to qualify. She will qualify on the same route as you.

Solicitors and HO call centre, often give incorrect information. The rules are very clear.

[baber2013]

Is FLR considered settled under immigration law? My solicitor is still advising me to apply for FLR now and then send child's naturalisation application with father in Aug 2016.

[Casa]

No, FLR is still limited leave. ILR grants settled status (permanent residence).