residence conditions

[bambumbile]

Hi All,

I am settled in UK with ILR which I got in April, 2005. I have a child who didn't join us when we came to UK. He was attending a boarding school overseas.

He join us this year after applying for settlement visa to join us.

My question is how his residence period will be calculated?

For example, can he join university in September next year under the home student conditions? He is 17 yrs old.

Also, if he wants, when can he apply for British Citizenship if (we) parents are not planning to apply for BC? Is it six years from this year or six years from time when we (parents) came to UK?

Thanks,

Bambu

[vinny]

His residence period will start when he enters the UK.

See also Home fees: who is eligible?

See also Can I be naturalised as a British citizen? As an single adult, he would require 5 years' of residence, with the last year on ILR.

[bambumbile]

Vinny,

Thanks, I found this case below, I thought its interpretation could be useful in my case, what do you think?

Ordinary residence of children
Re P (GE) (an infant) 1965 Ch 568
Note: this case was decided before 'Shah'

The child had been removed from the UK to Israel by his father without the knowledge of the mother. The father was stateless but had travel documents which entitled him to return to the UK with the child within three months. The question was whether the court had jurisdiction over the father and child and this depended on whether or not they were ordinarily resident in the UK.

It was decided that the father and child were ordinarily resident in the UK because:

the child’s home was with his mother in the UK
the father and son had left the UK on a travel document which entitled them to return, and which had not been surrendered. This amounted to an admission that the absence was temporary and on a tourist basis
they had left family and effects in the UK.
In coming to his decision Lord Denning said:

"An infant of tender years is ordinarily resident where he has his home, and that ordinary residence cannot be changed by kidnapping him or by one parent taking him from that home without the consent of the other.

...we are faced with the question: what is the ordinary residence of a child of tender years who cannot decide for himself where to live, let us say under the age of 16? So long as the father and mother are living together in the matrimonial home, the child's ordinary residence is the home – and it is still his ordinary residence, even while he is away at boarding school. It is his base, from whence he goes out and to which he returns. When father and mother are at variance and living separate and apart, and by arrangement the child resides in the house of one of them – then that home is his ordinary residence even though the other parent has access and the child goes to see him from time to time."

[sakura]

Did he ever come to the UK whilst at boarding school? Which country was he living, and how often did he come to the UK?

When did he come to the UK to live with you? What visa does he have?

As for university fees, he will qualify when he has lived in the UK for three years AND obtains ILR.

He should be entitled to naturalise as a British citizen once he has lived in the UK for five years (according to the rules as they are now).

[bambumbile]

Did he ever come to the UK whilst at boarding school? Which country was he living, and how often did he come to the UK?

When did he come to the UK to live with you? What visa does he have?

As for university fees, he will qualify when he has lived in the UK for three years AND obtains ILR.

He should be entitled to naturalise as a British citizen once he has lived in the UK for five years (according to the rules as they are now).

Hi Sakura,

He came to UK once in 2005 under visit visa for one month during his school holiday.

He finished his secondary school in December last year in Uganda and we immediatelly applied for his settlement visa to join us in UK. He Joined us early this year. He has got ILE.

My question is on the residence condition. The term ordinary residence for a child is not very clear to me.

The rules for fees require settlement, which he is OK but also three year residence which is where we have a problem. But because he was a child
abroad attending a boarding school, while his parents were settled in UK, don't we have a point here to claim that his ordinary residence also was in
UK with us?

I found this definition from home office website:
http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

8. Ordinary residence of minors
8.1 As a general rule it may be assumed that a child under the age of 16 shares the
same place of ordinary residence as his or her parents. This was held to be the
position in Re P(GE) (an infant) [1964] 3 All ER 977 even though the minor in
question was away at boarding school and later taken abroad by one of the parents
without the consent of the other. In Telles (2695) the Immigration Appeal Tribunal
held that a minor did not cease to be ordinarily resident in the United Kingdom as
long as his parents continued, despite temporary absences, to be ordinarily resident
here.
8.2 The ordinary residence of older minors, those whose parents are living apart and
those who have been left in the care of other relatives may be more difficult to
determine. If the minor's age and means are such that he is capable of deciding for
himself where he will live, his place of ordinary residence will probably not coincide
with that of his parents. Where a parent is no longer living with his or her child on a
permanent basis, it will be necessary to consider whether there is nevertheless
sufficient contact for them to be considered part of the same household. In such a
case it is more likely that the child will be ordinarily resident with the parent (or other
relative) having day-to-day responsibility for his or her care and upbringing.

[sakura]

Considering his age, and the fact that he did not spend much time in the UK during these years, I would think that he was not ordinarily resident in the UK, and as such he wouldn't be able to meet the residency requirements for "Home" fees purposes.

The case you mentioned is not technically similar to yours, because the child was initially resident in the UK with the parent(s), and then was taken out of the country against the resident parent's consent(?), and then sought to re-enter the UK. But I'm not an expert on this and am merely answering (on my own opinion) based on what you have posted.

Nevertheless, universities do have a lot of discretion on this, and they can decide on what basis he does qualify. Should it be a negative decision, then you would probably need to contact the relevant authorities.

Do you have any other children?

[bambumbile]

Considering his age, and the fact that he did not spend much time in the UK during these years, I would think that he was not ordinarily resident in the UK, and as such he wouldn't be able to meet the residency requirements for "Home" fees purposes.

The case you mentioned is not technically similar to yours, because the child was initially resident in the UK with the parent(s), and then was taken out of the country against the resident parent's consent(?), and then sought to re-enter the UK. But I'm not an expert on this and am merely answering (on my own opinion) based on what you have posted.

Nevertheless, universities do have a lot of discretion on this, and they can decide on what basis he does qualify. Should it be a negative decision, then you would probably need to contact the relevant authorities.

Do you have any other children?

Sakura,

Thanks, I have other children but they are young and were born here in UK.

He won't be joining university until September 2009 the earliest. If he won't qualify as home student then he will have to wait till September 2010 when the residence condition will be met.

[Wanderer]

Considering his age, and the fact that he did not spend much time in the UK during these years, I would think that he was not ordinarily resident in the UK, and as such he wouldn't be able to meet the residency requirements for "Home" fees purposes.

The case you mentioned is not technically similar to yours, because the child was initially resident in the UK with the parent(s), and then was taken out of the country against the resident parent's consent(?), and then sought to re-enter the UK. But I'm not an expert on this and am merely answering (on my own opinion) based on what you have posted.

Nevertheless, universities do have a lot of discretion on this, and they can decide on what basis he does qualify. Should it be a negative decision, then you would probably need to contact the relevant authorities.

Do you have any other children?

Sakura,

Thanks, I have other children but they are young and were born here in UK.

He won't be joining university until September 2009 the earliest. If he won't qualify as home student then he will have to wait till September 2010 when the residence condition will be met.

2011 surely?

[sakura]

It is at least three years prior to start date of the course, so it would be 2011.

[bambumbile]

OOPS! I made a mistake. I meant 2010 and 2011 respectively. He will be starting A-level this September, so the earliest he can join university will be September 2010.

He will try in 2010, If he won't qualify then he will have to wait a year till 2011.

[sreeni]

hmm he maybe able to be classed as a home fee payer if you become an EU National.as it says on the UKCISA site

Can I become a 'home' fee payer?

It is possible to become a 'home' fee payer, even if you started your course as an 'overseas' fee payer. In all cases, you must meet any residence conditions at the start of your course. However, you might be able to change fee status if, for example, you become:

* an EU national or the family member of an EU national

http://www.ukcosa.org.uk/student/fees_s ... upport.php

[Wanderer]

hmm he maybe able to be classed as a home fee payer if you become an EU National.as it says on the UKCISA site

Can I become a 'home' fee payer?

It is possible to become a 'home' fee payer, even if you started your course as an 'overseas' fee payer. In all cases, you must meet any residence conditions at the start of your course. However, you might be able to change fee status if, for example, you become:

* an EU national or the family member of an EU national

http://www.ukcosa.org.uk/student/fees_s ... upport.php

But that would mean either being resident 5 years, or marrying an EU resident who is exercising a treaty right, wouldn't it......

[bambumbile]

Mmmmmhhh!! I think in our case that won't change things much.

I am qualified to apply for UK citizenship even now if I want, which automatically will mean my child also getting UK citizenship. But, the three years residence condition for him still will be an issue even though won't be an issue for me.

Even for EU nationals still you need to prove that you were leaving there (in Europe) for at least three years.

I think for our case, the only option is for him to wait three years from now or may be if he will be luck to try to use the section 8.2 mentioned above.

Any other opinions on this issue?

[republique]

Hi All,

I am settled in UK with ILR which I got in April, 2005. I have a child who didn't join us when we came to UK. He was attending a boarding school overseas.

He join us this year after applying for settlement visa to join us.

My question is how his residence period will be calculated?

For example, can he join university in September next year under the home student conditions? He is 17 yrs old.

Also, if he wants, when can he apply for British Citizenship if (we) parents are not planning to apply for BC? Is it six years from this year or six years from time when we (parents) came to UK?

Thanks,

Bambu

I believe that
Once your soon enters with ILE, it is 5 years from that date from which he can apply for citizenship.

[bambumbile]

Republique,

On citizenship, at least we have two options if I am right. I can apply now for BC, that will include my son because he is under 18 or do nothing now then he can decide on his own later to apply for BC after 5 years.

My main problem is on the home fee issue. If I can find a way of avoiding paying 8,000 pounds will be great! I have been paying taxes in this country for 7 yrs now, in 2010 will be 9 long years of paying taxes.

[sakura]

hmm he maybe able to be classed as a home fee payer if you become an EU National.as it says on the UKCISA site

Can I become a 'home' fee payer?

It is possible to become a 'home' fee payer, even if you started your course as an 'overseas' fee payer. In all cases, you must meet any residence conditions at the start of your course. However, you might be able to change fee status if, for example, you become:

* an EU national or the family member of an EU national

http://www.ukcosa.org.uk/student/fees_s ... upport.php

That wouldn't work because, although bambumbile will be a British citizen, he (and his family) would be considered under the British rules. As we know, he is only able to use any EU/EEA route if excercising treaty rights. So, merely becoming a British citizen does not avail them of anything.

[sakura]

Republique,

On citizenship, at least we have two options if I am right. I can apply now for BC, that will include my son because he is under 18 or do nothing now then he can decide on his own later to apply for BC after 5 years.

My main problem is on the home fee issue. If I can find a way of avoiding paying 8,000 pounds will be great! I have been paying taxes in this country for 7 yrs now, in 2010 will be 9 long years of paying taxes.

How old is your son? I know that the rules are slightly different for children aged 16 and 17. Certainly, once he become 18 he has to wait 5 years for ILR.

As for the fees, to be honest, paying taxes doesn't really come into it. It is either HE qualifies, or HE does not. Also, did you know that even British citizens don't automatically qualify? There have been many cases of BCs who lived abroad (e.g. Hong Kong, USA, etc etc) who, not having lived anywhere in the EEA area for the three years prior to, are told they would have to pay "international" fees, much to their dismay.

It may seem harsh, but it is done so that people don't merely turn up and get a large 'discount', even though they hardly consider the UK their home and might well return to wherever it is they usually reside.