NEED SOME CLARIFICATION ON DP5/96 CASE.

[lancoalase]

Hi Everyone, Almost three year ago, a cousin of mine, an overstyayer with children born in Uk applied to HO, based on the length of her children stay in UK. The eldest one will be 16 this year and has been living in uk since age 5. The second one was born in UK and will be 10 next month. And she has 2 more kids age 5 and 2 born also in UK. Her application based on 7 year child concession is still with the HO. And it will be 3 years in May.
Now, the second chid born in UK, is due on his own merit to be register as British citizen in march this year. ( using form T ). She needs to know, if she does register the child as a british citizen now before the decision on her 7 year concession is decided, what impact is this going to have on her application, bearing in mind, that the said child is listed as the reason for her applying for the concession. Does it matter if the child is a british citizen or not for HO to apply the concession. You urgent advice will be highly appreciated. many thanks

[Twin]

My view is that she should apply for a British passport for her eldest as he only has 2 more years left.

I think she will still qualify for DP5/96 anyway, so long the second child was included in the application as well. It might even work for her advantage as it might be difficult for HO to remove her with the other kids knowing fully well that the British citizen child cannot be removed. I think this might make her case stronger.

[lancoalase]

[quote="Twin"]My view is that she should apply for a British passport for her eldest as he only has 2 more years left.

Thanks Twin, But the eldest child does not qualify for british passport because he came over here at age 5 and was not born over here.

[Twin]

My view is that she should apply for a British passport for her eldest as he only has 2 more years left.

Thanks Twin, But the eldest child does not qualify for british passport because he came over here at age 5 and was not born over here.

Oops! Then I suggest she sit tight and wait. Once she gets the DL based on DP5/96, she can always register the child as British before s/he turns 18.

My opinion is that if she registers the child now, the home office could always say she could return home and her child could take up his or her right of abode once he/she turns 18.

Also, as it's almost 3 years now, i'll advise her to not nag the home office. It's likely that she would get a reply before the end of the year.

[Twin]

The DP5/96 works better for families who have children born here and have lived here for 7 years or more. In cases like these, the home office believe that it isn't normal to remove a child who has strong ties here, so they grant the child residence. As a child of that age need to be looked after by a parent/s, they in line grant the parent residence too or some form of leave to remain.

It isn't necessarily so in the case of a child who is British citizen. A British citizen can go and come as he or she likes and has access to welfare. So a parent who is subject to immigration control but has British child will not necessarily benefit from this because the child isn't at a risk of removal.

Home office only gives leave to a parent because of the child. Hence my advise for her to sit tight and wait for the outcome rather than ruin her chances by applying for a British passport now. If she does that, she'll be making the HO's decision very easy indeed.

However, as the child is now 10, I think the home office can still argue the child having a right of abode by suggesting you to register him or her if you wish.

[lancoalase]

Twin, Many thanks for your in-depth explanation. I will advise her to wait and see the outcome of the application. And according to a note on the HO CID, which was made available to her when she got her SAR file. THere was a computer note on the CID, which says, " She is an overstayer and has 2 children. one of them was born in united kingdom and has since spent formative years in united kingdom "
This make me agree with you that, the child that was born in UK and live here over 7 years has more precedence than a child brought to UK.

[Twin]

This make me agree with you that, the child that was born in UK and live here over 7 years has more precedence than a child brought to UK

Not necessarily so. I think a child who was brought to the UK and has now spent 7 years or more here has as much right to remain as a child born here.

[lancoalase]

Not necessarily so. I think a child who was brought to the UK and has now spent 7 years or more here has as much right to remain as a child born here.

So, that means, the eldest child who is going to be 16 and named in the application can still be use as an avenue, if HO want to argue that, technically that the british born child who is going to be 10 has right of abode. Finger cross. thanks for takinftime to anwer my question and still open to others who has one or two to contribute.

[lancoalase]

Not necessarily so. I think a child who was brought to the UK and has now spent 7 years or more here has as much right to remain as a child born here.

So, that means, the eldest child who is going to be 16 and named in the application can still be use as an avenue, if HO want to argue that, technically that the british born child who is going to be 10 has right of abode. Finger cross. thanks for taking time to answer my question and still open to others who has one or two to contribute.

[Twin]

If her application is approved, all the children named on the application will be allowed to stay and of course she can always register the other two as British as she would have regularised her stay here.

So long the child born outside the UK has spent 7 years here then fine. Even if he hasn't and your cousin is granted leave based on the child who was born and have spent 7 years here, the 16 year old would get leave to remain also.

Basically she has no worries at all about any of her children or herself if/when the application succeds.

[Twin]

Not necessarily so. I think a child who was brought to the UK and has now spent 7 years or more here has as much right to remain as a child born here.

So, that means, the eldest child who is going to be 16 and named in the application can still be use as an avenue, if HO want to argue that, technically that the british born child who is going to be 10 has right of abode. Finger cross. thanks for takinftime to anwer my question and still open to others who has one or two to contribute.

As per the boldened, I think that is what makes this application so strong. The first child hasn't only lived here for 7 years but 11! Had he been born here, I would have given you almost 100% guarantee that the application would succeed as a British child who has spent 10 years of their life in this country should not be constructively removed.

Either way, I think this application stand a great chance for success.

[JAJ]

Oops! Then I suggest she sit tight and wait. Once she gets the DL based on DP5/96, she can always register the child as British before s/he turns 18.

If you are referring to the older child, that is wrong advice. Older child could normally only be registered as British if child gets ILR and mother is also becoming naturalised British at the same time.

Older child is probably going to need to be naturalised in due course.

My opinion is that if she registers the child now, the home office could always say she could return home and her child could take up his or her right of abode once he/she turns 18.

I am concerned that you are giving wrong advice based on your opinion over a complex area of law and policy, rather than the facts.

Section 36.7.1 does not give any support to your opinion, but instead suggests the contrary - that a child registered as a British citizen will only strengthen family's case, not weaken it:
http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

There is also the issue that it is much harder politically for the Home Office to split up a family where a British child is involved.

I do not believe your advice (not to register the child under Form T) is correct.

[Twin]

If you are referring to the older child, that is wrong advice. Older child could normally only be registered as British if child gets ILR and mother is also becoming naturalised British at the same time.

Older child is probably going to need to be naturalised in due course.

My statement was made before I realised that the older child was born outside the UK. I think I corrected myself once I realised that it is in fact the second child who was born here.

If you are referring to the older child, that is wrong advice. Older child could normally only be registered as British if child gets ILR and mother is also becoming naturalised British at the same time.

Older child is probably going to need to be naturalised in due course.

correct. [/quote]

My advise was based on personal experience and advise I have received from legal practitioners in the immigration field. There is something called constructive removal in the case of British children whose parents are subject to immigration control. It is even most difficult in a single parent household.

In my case, the HO held the view that as my child is a British citizen and I having not put forward an arguement of hardship in my home country, it is not disproportionate to remove me and my child as she is a British Citizen who can take up her right of abode once she reaches the age of 18.

Had my child not been British, DP/069/99 (HO child concession) could have availed me as I would have fitted into that criteria perfectly.

In this case, I assume that we are debating about a single parent? If so, then there would be no breach of human rights if the HO removes both children and mother together as they would believe that the mother has sole care of the children.

Having a British child doesn't necessarily make it impossible for the HO to remove an overstayer. Their arguement would be that they are removing the mother and not the child but of course we know that a mother cannot leave her child behind.

The only thing that makes it hard for the HO to remove a British Child is if their is a court order that prohibits it but of course a court order would not stop HO from removal. HO still has the greater power.

In a case where the children have both parents and the father is British,the father could argue in court that his Human Rights would be breached if the children were to be removed with their mother.

Just because removal would be difficult doesn't make it impossible.

[JAJ]

My advise was based on personal experience and advise I have received from legal practitioners in the immigration field.

With the greatest of respect, I would caution against using this as a basis to advise others.

Your personal experience may not have been in accordance with the letter of the law and policy. And many immigration advisers, except those in the top tier of the profession, are often wrong.

[Twin]

My advise was based on personal experience and advise I have received from legal practitioners in the immigration field.

With the greatest of respect, I would caution against using this as a basis to advise others.

Your personal experience may not have been in accordance with the letter of the law and policy. And many immigration advisers, except those in the top tier of the profession, are often wrong.

If HO is wrong and these solicitors are also wrong, do you care to give us your advise, then?

This should be good...

[JAJ]

If HO is wrong and these solicitors are also wrong, do you care to give us your advise, then?

Once again:
http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

Nothing in that document supports your assertion that a child should not be registered as a British citizen under Form T once eligible.

Why not give us some verifiable evidence otherwise, such as a reference to the HO website?

[Twin]

If HO is wrong and these solicitors are also wrong, do you care to give us your advise, then?

Once again:
http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

Nothing in that document supports your assertion that a child should not be registered as a British citizen under Form T once eligible.

Why not give us some verifiable evidence otherwise, such as a reference to the HO website?

You've got me wrong totally! Of course a child should be registered as being British once entitled but in this particular case and giving my own personal experience as a yardstick having being in a very similar situation, I have advised that the registration could be put on hold just so the applicant can totally benefit from the child concession.

There are a number of case laws that supports this. http://www.bailii.org/cgi-bin/markup.cg ... od=boolean, http://www.bailii.org/cgi-bin/markup.cg ... od=boolean.

My argument is: a child being British does not make it impossible for the HO to remove his/her parent/s. As a matter of fact, when it comes to the child concession, a child being British might be detrimental to a SINGLE parent's application. If the other parent is involved, and he/she is also British, then it could be difficult for HO to remove as there would be a clear breach of article 8 which when proportionality then becomes a debate.

You're cleverer than this, JAJ. Don't make me go blue in the face!

[JAJ]

Does anyone know where the actual text of the DP 5/96 policy can be found?

[Twin]

Does anyone know where the actual text of the DP 5/96 policy can be found?

http://www.coramchambers.co.uk/Sarah%20 ... _paper.htm

I think this supercedes DP5/96.

[JAJ]

Does anyone know where the actual text of the DP 5/96 policy can be found?

http://www.coramchambers.co.uk/Sarah%20 ... _paper.htm

I think this supercedes DP5/96.

No evidence there to suggest that child acquiring British citizenship would lead to family finding it harder to remain.

[Twin]

Does anyone know where the actual text of the DP 5/96 policy can be found?

http://www.coramchambers.co.uk/Sarah%20 ... _paper.htm

I think this supercedes DP5/96.

No evidence there to suggest that child acquiring British citizenship would lead to family finding it harder to remain.

I have put up my reasons for thinking it's best for a child not to be registered before the outcome of a child concession application.

[lancoalase]

I do not believe your advice (not to register the child under Form T) is correct.

Are you now suggesting that, it will be ok for her to go ahead and register the second child has a british citizen using form T. And this would not have any negative impact on the mother pending 7 year concession application? Please can anyone clarify this for me. The lady is worried. Many thanks

[JAJ]

I do not believe your advice (not to register the child under Form T) is correct.

Are you now suggesting that, it will be ok for her to go ahead and register the second child has a british citizen using form T. And this would not have any negative impact on the mother pending 7 year concession application? Please can anyone clarify this for me. The lady is worried. Many thanks

Realistically I doubt if anyone on an online forum knows for sure if it would be a help or a hindrance. You'll get opinions but nothing more.

The temptation is to say "get a solicitor" but unless a solicitor is highly competent & experienced in this area I doubt that will add much value either.

Do bear in mind that the Form T entitlement does not expire (unless the law is changed) so unless the child desperately needs British citizenship immediately, or is in danger of getting into trouble with the police (the "good character" element of the requirements) there may not be an immediate urgency.

But obviously, if it would help the parent's case then it might not be a good idea to delay.

What is the child's existing nationality?

Sorry but you're not likely to get definitive advice here. You may want to try the solicitor Laura Devine - ask her if she has experience of 7 year child concession cases. I can't give any specific recommendation so you'll have to go on your own judgement. http://www.lauradevine.com

[lancoalase]

I am indeed grateful for the advise and enlightment i got via the forum and i will pass it across to her, to contact if she wishes competent professional and then decide on what is best for her and the kids. thank to you all.