MN1 Section 1(3) Problem

[savage87]

Hi, my name is Alex, my wife and I are Romanian nationals, we have a 3 years old son. We come to the UK in Sept 2009, since then I've been self-employed under CIS and my was on and of employed/self-employed with a 2 year gap looking after my son after her maternity leave.

On the 12th of Jan 2016 we have applied for British citizenship for my son. We used NCS, I've prepared a lot of documents to support the application, but the only thing they asked for were 5x SA302.
Today, 12th of March 2016 we got a letter through the post asking us to send evidence that the mother has exersising the Treaty Rights for a continuous 5 years and that is a problem for us as she had a gap.

British Nationality Act 1981 Section 1(3)

A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [F7, (1A)] or (2) shall be entitled to be registered as a British citizen if, while he is a minor—

(a)his father or mother becomes a British citizen or becomes settled in the United Kingdom; and

(b)an application is made for his registration as a British citizen.

I'm really frustrated because of this situation.

Please HELP! Thanks!

[noajthan]

Hi, my name is Alex, my wife and I are Romanian nationals, we have a 3 years old son. We come to the UK in Sept 2009, since then I've been self-employed under CIS and my was on and of employed/self-employed with a 2 year gap looking after my son after her maternity leave.

On the 12th of Jan 2016 we have applied for British citizenship for my son. We used NCS, I've prepared a lot of documents to support the application, but the only thing they asked for were 5x SA302.
Today, 12th of March 2016 we got a letter through the post asking us to send evidence that the mother has exersising the Treaty Rights for a continuous 5 years and that is a problem for us as she had a gap.

British Nationality Act 1981 Section 1(3)

....

I'm really frustrated because of this situation.

Please HELP! Thanks!

HO has made an error here.

If a child is born in UK they are entitled to register as a citizen as soon as one parent has become settled (which for EEA national means acquiring PR) or has naturalised.
One parent with PR is enough.
It doesn't have to be mother.

Suggest write back and point this out to HO.
Hopefully you provided adequate evidence of your having acquired PR status.

[savage87]

Thanks for you quick reply noajthan!

Like I said above, all that was requested at NCS were 5x SA302 as I've been self-employed under CIS since coming to the UK in 2009. I'm currenty in the process of applying for PR, but don't actually hold confirmation yet. I believe that I've become settled in 2015.

[noajthan]

Thanks for you quick reply noajthan!

Like I said above, all that was requested at NCS were 5x SA302 as I've been self-employed under CIS since coming to the UK in 2009. I'm currenty in the process of applying for PR, but don't actually hold confirmation yet. I believe that I've become settled in 2015.

If working in UK since 2009 you may have acquired PR in 2014.

Proof of just one parent's status is enough for a Section 1(3) application.
Just need to remind caseworker of this fact.

[savage87]

I have sent them an email as per the letter that they sent me. I'm just affraid that they won't respond in time as they given me a deadline to send the supporting document for my wife, if I don't send the document that they require by the 24th of March the application will be refused.
Another problem with that is that my son's passport has expired since making the application and they want original valid ID.

[noajthan]

I have sent them an email as per the letter that they sent me. I'm just affraid that they won't respond in time as they given me a deadline to send the supporting document for my wife, if I don't send the document that they require by the 24th of March the application will be refused.
Another problem with that is that my son's passport has expired since making the application and they want original valid ID.

There is no grounds for refusal if father submitted application with father's details.
You just need to be sure they know you are applying under s1(3) of BNA and that you meet requirements on basis of one parent's status.

My understanding is a valid passport is not required. Some minors applying under 1(3) do not have any passport.

[savage87]

That's how I made the appliation, under section 1(3).
I have been exercising my Treaty Rights since nov 2009 so in nov 2014 I had 5 continuous years. In March 2015 I've worked with the same company for a continuous 5 years. I have paid my taxes and NI and sumbitted self assesments every year since 2009. My son was born in the UK in nov 2010. So, my opinion is that he can be registered as a British Citizen under section 1(3) as quoted:

A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [F7, (1A)] or (2) shall be entitled to be registered as a British citizen if, while he is a minor—

(a)his father or mother becomes a British citizen or becomes settled in the United Kingdom; and

(b)an application is made for his registration as a British citizen.

It's not a requirment that I get confirmation of PR before appliyng...Correct?

I would of thought that they would of asked me for further evidence to support my self-employement, instead they asked me about my wife..

[noajthan]

That's how I made the appliation, under section 1(3).
I have been exercising my Treaty Rights since nov 2009 so in nov 2014 I had 5 continuous years. In March 2015 I've worked with the same company for a continuous 5 years. I have paid my taxes and NI and sumbitted self assesments every year since 2009. My son was born in the UK in nov 2010. So, my opinion is that he can be registered as a British Citizen under section 1(3) as quoted:

...

It's not a requirement that I get confirmation of PR before appliyng...Correct?

I would of thought that they would of asked me for further evidence to support my self-employement, instead they asked me about my wife..

There is now a requirement fior EEA nationals (and family members) who are naturalising (as adults) to submit a PR card as one piece of mandatory evidence.
This is not the case for EEA minors with EEA parents who have PR.

My understanding is that your understanding is correct and the caseworker has made a mistake.
Suggest quote back to them what you just quoted above, ask for an apology and for the registration to proceed.
Hopefully you will get the registration.

[savage87]

Thanks a lot for all your help noajthan ! It really helps that someone else reassures you that what you think is correct!

That office in Liverpool seem's to have a lot of incompetents working there! I was also in the process of applying for PR for my wife and I. I've sent 2 application forms with 2 cards to be debited for 65 pounds each. Guess what they've done??

They send all my document back with a letter of refusal because I haven't paid the correct fee of 130 pounds. I actually did, my card had 65 taken and my wife's had 32 pounds taken. I have written a complaint, don't know if that's going to help, but I sent it anyway. More than a month wasted. Now I need to start all over again...

[Diana15]

Savage87 Did you receive any answer from home office? I got the same problem ))

[savage87]

which problem, the one regardin MN1 or PR?

[Diana15]

About evidence, that your wife also has exersising the Treaty Rights for a continuous 5 years...

[savage87]

We have consulted with a solicitor and I wasn't aware that my wife has the same rights as I have as long as I'm exercising my treaty rights as a "qualified person", in my case, self-employed.

Section 6
Section 7
and most important
Section 14 and 15:
14. (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.
- See more at: http://www.eearegulations.co.uk/Latest/ ... WBD5f.dpuf
...
15. (1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a)an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
- See more at: http://www.eearegulations.co.uk/Latest/ ... xLXcg.dpuf

So in the end we have responded to their letter with a long cover letter and basicly my evidence of self employment and both our residency documents..

[Diana15]

Thanks for information.
I just can't understand why they ask for two parents to be settled when law wrote that it is enough with one parent.

[savage87]

What evidence did you send?

I agree with you 100%... If I get an answer from them I will let you know... good luck with you application!

[Diana15]

Application was based on my husband, we applied through NCS. Have provided his document certifying permanent residence.

P.S. Already have sent an email to home office with links to law.

[savage87]

I did write an email to them asking why they requested evidence for my wife, but I haven't yet got a response. They gave me less than 2 weeks to provide more evidence and they are saying they will aim to respond to my email in 20 working math... that just doesn't work. I hope you'll have more luck with them!

[Diana15]

I will wait for replay till Friday. Than will send the letter with the same information. By the way, maybe we got one caseworker?! ))

[savage87]

No laughing matter, I was really stressing out when I got the letter.

The caseworker has initials N U..

[vinny]

Agree that the caseworker made a mistake.

[Diana15]

No laughing matter, I was really stressing out when I got the letter.

The caseworker has initials N U..

nope, got different caseworker...

but today have called to home office and they agreed, that with one settled parent is enough advised to send the letter with explanation about the law...

[savage87]

Good luck Diana. Let us know if you get an answer!

[Diana15]

Didn't get any replay yet however have sent the letter and email. What about you, any news?

[savage87]

nothing yet. I think they are on holiday..

[savage87]

I got the registration certificate, my son is now a British Citizen, but I didn't get a reply to any of my emails/complaints or all the evidence that I submitted when they asked me for further information.