Help with refused registration of a child

[owenmi]

Hi all,
First, I would like to thank everyone here for all the knowledge and help. I've been a long follower of this forum.

We've hit a wall with the Passport Office, and I hope someone here could help. We've been living in the UK since September 2010 as EEA citizens. I've worked, then went on vocational training, then worked again. Technically, we've obtain the right for permanent residence in September 2015. Thus, in March 2016 we've applied for the permanent residence card, which was given to us in September 2016. In the interim (after the application was submitted, but before the card was issued) our son was born.
My application for my son's registration was refused by the passport office, as they were unaware that vocational training was considered as retaining worker status. I've sent them the information, including the relevant clauses from several sources of information, but they still don't know how to swallow this. They then went to UKVI, asking for confirmation, and now the UKVI say that there's a gap in the dates, so PO is right.
However, based on the same evidence HO issued PR, and then approved or naturalisation (ceremony is next month)!
Is there any way to convince the PO that the registration should be approved?

[Obie]

I believe you need to threaten Passport office with legal action, and actually pursue it.

Tell them you will seek a declaration, and will also seek cost, in the event of you succeeding.

[secret.simon]

Apply for an SAR with the Home Office as to the date on which you acquired PR, as per their records. Submit that to the Passport Office.

[Richard W]

Is there a risk that the approval for naturalisation could be withdrawn before the ceremony?

Was the period of vocational training without CSI covered by the EEA regulations under some other means? For example, if the OP had an EEA spouse who was working in the UK during that time, then even if the advice to the PO from UKVI were correct, the OP would have acquired PR as a mix of being a QP and being a family member of a QP.

[Obie]

OP did not obtain the PR certificate which facilitated the Naturalisatio, by fraud, therefore it is difficult to see how the naturalisation can be revoked.

[Richard W]

OP did not obtain the PR certificate which facilitated the Naturalisatio, by fraud, therefore it is difficult to see how the naturalisation can be revoked.

The OP won't be British until August, so it isn't a question of revoking citizenship.

[Obie]

Well a decision has already been made to grant him a Certificate. The Secretary has already exercised her discretion under Section 6 (1) , as the requirements of Schedule 2 are met. This person is a British, subject only to him attending the ceremony . His certificate has already been sent to the Local authority, with only a date awaiting to be entered on it.

As that decision has been made and communicated, it will take a lot to have that decision revoked or rescinded.

[Richard W]

... the requirements of Schedule 2 are met.

Not if the PO has been advised correctly. As I understand it, the PO has been advised that the OP ceased to be a QP until he obtained CSI in 2012. So, if the OP wasn't covered by the EEA Regulations in some other way, he has not met the requirements of BNA 1981 Schedule 1, and is relying on the SSHD to exercise her discretion to ignore the issue of the OP's not having been settled for 12 months. I hope the SSHD does exercise such discretion if she is erroneously satisfied that an applicant meets the requirements. Otherwise, if the PO's advice is not successfully challenged, the OP might find himself refused a British passport on the grounds that his naturalisation was a nullity, i.e. never really happened.

[Obie]

In the real world things don't tend to work that way.

In all my dealings with passport office or Home Office or the Tribunal, none of them have ever gone behind a PR document issued by the Home office.

In 2 tribunal cases when Home Office had refused a person on the basis that their spouse was not exercising treaty rights, as soon as I show them the document issued by the SSHD, that brought to a close the matter.

Therefore unless Home Office raised an issue of fraudulent conduct, a court will accept an evidence of PR rights if it is shown that a person was issued by the Home Office.

[CR001]

Apologies, RichardW the OP has asked about Child Registration and NOT adult naturalisation so not sure why you felt the need to veer off track and again, the OP appears to have left the topic due to your confusing posts.

Can we keep this topic on track and advise the OP accordingly.

Obie, I concur with your advice and that of secret.simon.

I believe you need to threaten Passport office with legal action, and actually pursue it.

Tell them you will seek a declaration, and will also seek cost, in the event of you succeeding.

[owenmi]

Thanks all for you answers.
Some clarification:
I did ask for a SAR, which shows that the day of PR is September 2015. I sent it to the passport office, and they still went to the home office for a second approval, and that was denied. I explained this situation to the case worker over and over again,but to no avail. PO are unaware that vocational training is seen as retaining worker status. It appears the gap they are referring to is a 2 months gap when I was travelling, so I will write to them again, emphasising on this. My application (i.e. mine and not my son's ill go forward as planned, so I don't think there's a risk of revoking the documents.

[Richard W]

In all my dealings with passport office or Home Office or the Tribunal, none of them have ever gone behind a PR document issued by the Home office.

@Obie: Sorry, but if this remark is relevant, I don't understand what you mean by "go behind". The DCPR was received in October 2016, so the DCPR in itself neither helps establish that the son is British nor that the father is eligible for naturalisation. (Noajthan advised that this DCPR would be liable to just confuse the PO.) What would be relevant is the HO records behind it, which record that PR was achieved in September 2015, which together with other documents makes the son British and the father eligible.

@Owenmi: Has the PO seen the SAR or its contents?

[owenmi]

Hey, this seems to take some interest
I did send the PO my SAR, which is why I'm so puzzled about their decision.
I will send them one more letter, reconfirming all the dates, and threatening with legal actions. I'm not too keen to take legal actions due to the high costs. I reckon they will be higher than opting to registration (fees of £900-ish).
Any other ideas?

[Obie]

If you properly explain the legal position. They will withdraw. I don't think they will want to pursue, as there will be server cost against them if they lose. Based on what I have read from your case, it seem clear that they may lose or possibly will lose, unless of course, in my experience what people tend to say on forum is quite different from reality, when minds are focused on the facts.

[Richard W]

Any other ideas?

When does the PO think you acquired (or will acquire) PR?

You said, "We've been living in the UK since September 2010 as EEA citizens". If your spouse was working while you were studying without CSI, then you would have been accruing time towards permanent residence even if you had not retained worker status. Time towards permanent residence can be accrued as a mix of initial 3 months (there's now a judgement to that effect), qualified person, family member, and family member with a retained right of residence. Indeed, does your spouse have a DCPR?

If you were not married, but merely 'durable partners', a residence certificate might help, though I fear that may be uncharted territory.

[owenmi]

I will.
Thank you so much for the help

[JAJ]

If documents clearly show that Permanent Residence was acquired before the birth of the child, then the simplest way to resolve the issue is to apply for a Nationality Status Certificate for the child.
https://www.gov.uk/government/publicati ... us-form-ns

This takes the Passport Office out of the process of determining British citizenship- both now and at future passport renewals. Unless there is a suggestion that the Permanent Residence documentation was issued in error.

Incidentally- the Passport Office do not "register" anyone as British. They simply issue passports to those who provide evidence of British citizenship.

[owenmi]

Hello everyone

I promised to update on the matter, and here goes.
I wrote to the PO, explaining (again) the timeline of our residency. I told them about my travels, told them I was preparing for my studies during the summer, and told them I've consulted with a lawyer who advised me to contact them before seeking legal actions.
Their response was, again, refusal. Saying there are 26 days I was in the UK with no CSI, after I finished work and before I started my studies.
I spoke to a lawyer again, and he explained that this might not have a solution, as the HO won't register the child (as he's already British) and the PO won't issue a passport, because they don't see it that way.
BTW, in the interim I received my British Passport.
Will applying for confirmation of British nationality status, as suggested, help with anything?
I don't know what else to do!!

[vinny]

Will applying for confirmation of British nationality status, as suggested, help with anything?

If documents clearly show that Permanent Residence was acquired before the birth of the child, then the simplest way to resolve the issue is to apply for a Nationality Status Certificate for the child.
https://www.gov.uk/government/publicati ... us-form-ns

This takes the Passport Office out of the process of determining British citizenship- both now and at future passport renewals. Unless there is a suggestion that the Permanent Residence documentation was issued in error.

[owenmi]

Thanks

To be honest, after receiving PO's refusal due to the gap of 26 days, I'm a bit concerned to apply to HO. Not to keen to poke the bear...

[JAJ]

You're going to have to apply to the Home Office either way (sooner or later)- either MN1 or a Nationality Status Certificate application- if you want your child to be British. You say you've retained the services of a lawyer (did you pay?)- has this lawyer reviewed your circumstances against the Immigration (EEA) Regulations and advised on when PR was actually attained? Is the lawyer familiar with the Nationality Status Certificate procedure? How many EEA immigration/nationality cases has the lawyer handled previously?

A quick look at the Regulations suggests that time in vocational training normally counts as a "worker" if someone was previously employed and if the Passport Office [or at least, someone working for the Passport Office] are saying that a transitional period of a few days between ceasing employment and starting training breaks that status it appears to be an unreasonable interpretation of the law. There will almost always be a short break involved, even if only a day or two. One would expect the Home Office already made the relevant interpretation when it issued the PR documentation.

Also- the term "We" was used earlier in the thread- so is there a spouse/partner involved who may have been working at the relevant time? Is that spouse/partner also a British citizen? Are there any other children in the family- are they British citizens?

I think it's pointless arguing further with the Passport Office, and any form of legal action would also be a waste of time and money when there are simpler solutions available. I think it's likely that a Nationality Status Certificate would be granted and if it was refused (unlikely), then an application for MN1 is still possible. Although it is important to clarify status of spouse/partner and any other children before proceeding.

[owenmi]

Thanks jaj.

There's a spouse, but she was (and still is) a student for the whole period.
The lawyer dealt with our PR application, and submitted all the information required for that. Once we were granted the PR, he suggested we apply independently, as it's a straightforward application, and we did. Our elder son was registered with MN1, and my wife and I were naturalised. Our younger son is the one that is neither here nor there.
At this point, should I ask to withdraw my son's application or ask them to wait until I will obtain the certificate from the HO. Will they even take it into consideration?

[JAJ]

No point to withdrawing the passport application. You'll lose the fee and will have to pay again when reapplying. It may be an option to ask the Passport Office if they will hold the application while you apply for a Nationality Status Certificate- they might or they might not do so. If they don't, you have to reapply anyway.

The other option- and you may wish to discuss with your lawyer- is that if there is any possibility that the Passport Office are right in their thinking that you did not get PR before your son was born, you may wish to apply straight for British citizenship on form MN1. Although the fee is higher, it gives a higher degree of certainty because the Certificate of Registration (applied for in good faith) is not subject to being revoked or nullified later on if deemed to have been granted by mistake. The other issue to consider is what EEA country are you from- depending on the country involved, they may allow dual citizenship if acquired automatically but not if acquired by registration.

[owenmi]

Once again, thank you so much. I will do as guided.
Keep your fingers crossed for me