Kids British passport taking lot of time - Can I apply ROA?

[krishnam]

Hi,
I got British Passport through naturalisation and my wife got ILR. My wife got pregnant in UK but we went to India for delivery of a baby. We applied for my kids British passport on 22nd Feb. Since 3 months my application got stuck with Overseas team for overseas checks. Not sure how long still will it take.

As I am missing my son and wife a lot - I am planning to apply for Right Of Abode (ROA) in the mean time so that I can get Indian passport for my kid and then apply for ROA and then go to UK as we are missing each other a lot.

Is that going to cause any problem if I apply for ROA while my kids British passport application is in progress?

Could you please suggest / share any experiences?

Many thanks
Krishna

[Macro_Run]

I received my child passport after 5 months in India.
It is taking more time due to the overseas documents verification for everyone.
If you are sure that all the documents are OK and they did not ask any additional documents,
wait for a while. You must wait alteast 16 weeks according to their process.
I am not sure whether you can apply ROA for the same kid when the passport application is in the process.

[Indguru90]

Hi,
I got British Passport through naturalisation and my wife got ILR. My wife got pregnant in UK but we went to India for delivery of a baby. We applied for my kids British passport on 22nd Feb. Since 3 months my application got stuck with Overseas team for overseas checks. Not sure how long still will it take.

As I am missing my son and wife a lot - I am planning to apply for Right Of Abode (ROA) in the mean time so that I can get Indian passport for my kid and then apply for ROA and then go to UK as we are missing each other a lot.

Is that going to cause any problem if I apply for ROA while my kids British passport application is in progress?

Could you please suggest / share any experiences?

Many thanks
Krishna

1. Three months sounds like an inordinate delay, even for an overseas application. Are you chasing HMPO regularly?

2. Getting a COE in your child's Indian passport will take time, in all probability more than waiting for HMPO to issue the passport (plus an overseas COE is hideously expensive). As I understand it, you have not yet applied for your child's Indian passport anyway, which will take additional time. (And of course, he cannot hold both an Indian and a British passport under Indian law).

3. By law, a person is not entitled to a British citizen passport and a COE, it's either one or the other. UKVI will make checks with HMPO whether a passport application has been made or whether a passport has been issued. So unless you are willing to formally withdraw the passport application, you cannot apply for a COE in parallel.

4. The "nuclear option" (travelling to the UK via Ireland on the basis of free movement rights coupled with Common Travel Area entitlement) wouldn't work in your case as your child would, as an Indian passport holder, still need a short stay visa for Ireland.

[Obie]

The above is wrong.

Firstly COE to a right of abode, it is not hideously expensive compared to an entry clearance, which is 4- 5 times that amount , and there is nothing barring a British Citizen having a CEO and also a British Passport. A COE is put in a foreign, and it acts as a proof of a person's british citizenship status.

[Richard W]

The above is wrong.

Firstly COE to a right of abode, it is not hideously expensive compared to an entry clearance, which is 4- 5 times that amount , and there is nothing barring a British Citizen having a CEO and also a British Passport. A COE is put in a foreign, and it acts as a proof of a person's british citizenship status.

1. The boy can't get an entry clearance - he's a British citizen.

2. For quite some time now, the Home Office has had a policy that one cannot have both a valid CoE to RoA and a valid British passport.

3. Indian citizens forfeit citizenship if they obtain a foreign passport.

[Obie]

Well i know a British Citizen cannot apply for Entry Clearance, and my post did not indicate that, so there is no need to tell me.

I am sure that OP will be aware that if he voluntarily seek a UK passport for the child, then he will have not option but to relinquish the child's indian citizenship.

[Indguru90]

The above is wrong.

Firstly COE to a right of abode, it is not hideously expensive compared to an entry clearance, which is 4- 5 times that amount , and there is nothing barring a British Citizen having a CEO and also a British Passport. A COE is put in a foreign, and it acts as a proof of a person's british citizenship status.

Hi Obie, you are misinformed. My points were absolutely not wrong. First, COE is expensive compared to a passport (about five times as much), which is the appropriate comparator.

Second, an overseas COE costs £423. Cheaper than a PBS or FM entry clearance, but not four or five time cheaper as you claim (unless you include extensions and settlement in that figure).

Third, the COE is not evidence of citizenship, it is evidence of the right of abode. The former derives from the British Nationality Act, the latter from the Immigration Act.

Fourth, it is a matter of statute, not policy, that a British citizen cannot have both a passport and a COE, see Immigration (Certificate of Entitlement to the Right of Abode) Regulations 2006, regulation 6 of which provides:

6. A certificate of entitlement will only be issued where the appropriate authority is satisfied that the applicant—
(a)has a right of abode in the United Kingdom under section 2(1) of the 1971 Act(1);
(b)is not a person who holds:
(i)a United Kingdom passport describing him as a British citizen,
(ii)a United Kingdom passport describing him as a British subject with the right of abode in the United Kingdom.

It is HO policy to check with HMPO that the applicant does not have a British citizen passport.

[secret.simon]

Being utterly pedantic, but regulations are not statute. They might be part of the law, but they are not statute. In English law, "Statute" only refers to Acts of Parliament and possibly other primary legislation (Acts of the National Assembly of Wales). Regulations are secondary/delegated legislation.

The regulations raise an interesting hypothetical question. A person who already has a British citizen passport cannot get a CoE-RoA, as you have pointed out. But can such a person apply simultaneously for a Coe-RoA and a passport, given that at the time of application, he did not hold a British citizen passport?

Third, the COE is not evidence of citizenship, it is evidence of the right of abode. The former derives from the British Nationality Act, the latter from the Immigration Act.

This is a very good point on which I had not reflected before. Thank you for bringing it to my attention.

[Obie]

You are totally missing the point on the COA.

The OP is entitled to apply for the COA which he suggested, and that will not invalidate the Passport application.

I was seeking to relay to you, that the COA does not preclude the issuance of Passport. It makes not sense if a person hold a British Passort to also hold a COA. The OP wants to see his child, and passport takes a long period, and he is entitled to COA .

The point i made is COA and British passport, and never said a Passport and COA.

The 1971 Act sets out who has a right of abode. The Certificate is merely a confirmation, and does not confer rights.

For practical reason, the regulation provides that a person who has a passport cannot be issued a COA , as they already has the means of confirmation of their right, there is no need for double confirmation. It does not mean that they don't have the right of abode, which the 1971 acts confers on them. It just that secretary of state will not issue two documents to them at a time as it makes no sense.

[Richard W]

@Krishnam: There's nothing of help to you in this post, I'm afraid.

Third, the COE is not evidence of citizenship, it is evidence of the right of abode. The former derives from the British Nationality Act, the latter from the Immigration Act.

Someone under 30 can only have RoA if he is a British citizen.

Fourth, it is a matter of statute, not policy, that a British citizen cannot have both a passport and a COE, see Immigration (Certificate of Entitlement to the Right of Abode)

I'm the one who said 'policy', not Obie.

[Indguru90]

Since we are engaging in a bit of pedantry here (and I hope we're not hopelessly confusing the initial poster here):

Being utterly pedantic, but regulations are not statute. They might be part of the law, but they are not statute. In English law, "Statute" only refers to Acts of Parliament and possibly other primary legislation (Acts of the National Assembly of Wales). Regulations are secondary/delegated legislation.

As a lawyer I disagree. The word "statute" is protean, just like "common law". At its most basic, it means written law, whether passed by Her Majesty in Parliament, a devolved assembly, or a minister pursuant to a power enshrined in primary legislation. In that sense, even a bye-law partakes of the character of statute law. Within that group, you may then further distinguish by using "statute" in the sense of primary legislation. However, "statute" is not a legal term in the traditional sense and hence does not have one fixed meaning. There is nothing inappropriate in characterising secondary legislation as statutory (which it is), to contrast it to prerogative power or third-source power.

The regulations raise an interesting hypothetical question. A person who already has a British citizen passport cannot get a CoE-RoA, as you have pointed out. But can such a person apply simultaneously for a Coe-RoA and a passport, given that at the time of application, he did not hold a British citizen passport?

Not really hypothetical as that is what the poster is considering in fact. Parallel applications are problematic from the perspective of the 2006 Regs as they can be used to bypass the Regs.

You are totally missing the point on the COA.

With respect, Obie, I don't think it's me who's missing the point. I said nowhere in my previous posts that the passport application would be invalidated. What I did say was that the ECO dealing with the COE application is obliged to check with HMPO whether there are passport details on file. The ECO is entitled at his discretion, based on the statutory (sorry, secret.simon) prohibition on holding both a passport and a COE, to at least suspend the COE application pending determination of the passport application. This would be a terrible waste of £423.

The OP is entitled to apply for the COA which he suggested, and that will not invalidate the Passport application.

The poster's kid is indeed entitled to the right of abode. That does not equate to an unqualified entitlement to be issued a COE. There is nothing in the 2006 Regs or in section 10 Nationality, Immigration and Asylum Act 2002 that confers an entitlement to be issued a COE (hence why there's no appeal from a refusal any more).

I was seeking to relay to you, that the COA does not preclude the issuance of Passport. It makes not sense if a person hold a British Passort to also hold a COA. The OP wants to see his child, and passport takes a long period, and he is entitled to COA .

Again, not what I was saying. A COE holder can apply for a passport but must submit the passport containing the COE so it can be cancelled before the passport is issued. This is not the case where two parallel applications are being made, which contravenes the statutory (again, sorry secret.simon) purpose of the 2006 Regs.

The 1971 Act sets out who has a right of abode. The Certificate is merely a confirmation, and does not confer rights.

Yes - where did I say anything to the contrary? I was pointing out the different statutory foundations of citizenship and ROA, respectively. We cannot confuse entitlement to a benefit with entitlement to a document confirming that benefit (although in my view this is what the law should be). We all know that British citizenship does not "entitle" anyone to a passport. Same with COEs, as outlined above.

For practical reason, the regulation provides that a person who has a passport cannot be issued a COA , as they already has the means of confirmation of their right, there is no need for double confirmation. It does not mean that they don't have the right of abode, which the 1971 acts confers on them. It just that secretary of state will not issue two documents to them at a time as it makes no sense.

As per the above, the problem with a PARALLEL application is that the purpose of the 2006 Regs would be bypassed.

[Indguru90]

@Krishnam: There's nothing of help to you in this post, I'm afraid.

Third, the COE is not evidence of citizenship, it is evidence of the right of abode. The former derives from the British Nationality Act, the latter from the Immigration Act.

Someone under 30 can only have RoA if he is a British citizen.

Yup, as long as the DOB is after 31/12/82 and the person has a COE the necessary implication is that the holder's a BC. But a COE is not regarded as primary evidence of citizenship, e.g. when having to prove nationality for a restricted post in the civil service. Agreed that this makes little sense, but then most of our nationality laws are a perplexing mess of nonsense, aren't they... I admit this thread has become too pedantic for the purposes of the original question though.

Fourth, it is a matter of statute, not policy, that a British citizen cannot have both a passport and a COE, see Immigration (Certificate of Entitlement to the Right of Abode)

I'm the one who said 'policy', not Obie.

Wasn't directed at Obie, general observation.

[Obie]

I can see you are a junior member on the forum, about a week, If i am correct. So i will try and go easy on you. I do notice that you are clearly punching above your weight in the posting, but it clearly does not make us misinformed.

With the utmost respect, i think your difference is without distinction. The COE without a right, is a meaningless piece of paper. The right of Abode originate from the 1971 Act, which is a Primary Legislation as Simon correctly mentioned. It went though various parliamentary stages, and obtained royal accent . The regulation is a secondary legislation which does not require that.

I agree with the point Simon was seeking to make, that issuance of a COE is not controlled by Primary legislation, it is controlled by secondary legislation like a regulation, which did not undergo similar scrutiny.

The regulation is seeking to protect duplication of documents, just like a person cannot have 2 passport at a time, so too can a person not have a Right of Abode and a passport, as it is a bit of a duplication. Serves no justifiable purpose.

I can see you are trying to engage me in an academic exercise, which i am not prepared to undertake on a Friday evening.

So getting back to OP.

He is entitled to apply for the COE on the Indian passport. This is perfectly fine, as there is uncertainty when the check on the British passport will be completed.

[krishnam]

Hi Obie/Other,
Many many thanks for all your valuable comments and answers.

@Obie - As I am little worried about my kid BRITISH PASSPORT application processing time. Not sure when checks going to be finished. Hopefully at some point they will be finished and will get BRITISH PASSPORT.

As per your suggestion -
"He is entitled to apply for the COE on the Indian passport. This is perfectly fine, as there is uncertainty when the check on the British passport will be completed."

In the meantime I would like to proceed with COE-ROA. So I will apply for Indian Passport first and then will apply for COE-ROA. I am bit confused with COE and ROA. What is process? Do I need to apply for ROA (Right of Abode) and then COE or both are same? Could you please let me know the process and documentation for it?

Regards
Krishna

[Richard W]

Do I need to apply for ROA (Right of Abode) and then COE or both are same?

Right of abode is the unconditional right to live in the UK. It flows from the citizenship. The only people who have it are either British citizens or were commonwealth citizens with a British-born parent or grandparent at midnight on 1st January 1983. All British citizens have right of abode. One cannot apply for RoA: one may merely ask for acknowledgement that one has it.

The Certificate of Entitlement is something inserted in a passport (other than a British citizen passport) to record that the holder has RoA.

[anony88]

Thanks to the guidance provided and experience shared in this forum that I got my child's COE ROA from India within 10 days !!

[j-i-j-o]

Thanks to the guidance provided and experience shared in this forum that I got my child's COE ROA from India within 10 days !!

Can you tell us a little more about yourself.? Like parents BC? How did you find the process.
Honestly if I had known about this COE ROA earlier I could have applied for the same instead of the passport which takes for ever.

[anony88]

Thanks to the guidance provided and experience shared in this forum that I got my child's COE ROA from India within 10 days !!

Can you tell us a little more about yourself.? Like parents BC? How did you find the process.
Honestly if I had known about this COE ROA earlier I could have applied for the same instead of the passport which takes for ever.

Myself Naturalised BC, Mother PBS dep Indian, Child born in India after my my naturalisation.
Process simple applied through VFS. The documents were also straight forward(again thanks to the forum for providing the checklist of documents).
After spending hours of reading all posts and experiences in forum understood about COE ROA and its benefits(mainly enables quick travel to UK).