Naturalization under section 3(1) discretion

[mabilla1]

Dear all. Apologies if the subject exists already, i searched but could not find my exact situation.
Myself, my wife and 3 children had 6 years Tier 2 visas since 2013 (wife and children were my dependants). When it was 5 years (November 2018), I applied for ILR for just me and my wife and left my children on Tier 2 due to financial constraints. My children's Tier 2 dependant visas will now expire on 1st November 2019 while myself and my wife are due to apply for citizenship on 23 November 2019. This means i have to make new applications for my children just 3 weeks (22 days) before me and my wife will become citizens. I recently became aware that i can skip the ILR route for my children by registering them directly as citizens under section 3(1) of the nationality act 81. Can I still register my children as citizens under this section 3(1) even though me and my wife are yet to become citizens (22 days gap)? Or what is the best way to go about my children's applications please. Your advise and guidance will be much appreciated please.

[aman90]

If ur children were born here then they can register as BC. You and ur wife’s naturalisation or application is irrelevant to them. You could have registered them when you received ILR.

[CULLINAN]

If ur children were born here then they can register as BC. You and ur wife’s naturalisation or application is irrelevant to them. You could have registered them when you received ILR.

Thats section 1(3). OP mentioned Section 3(1) so most likely the child is born abroad.

[Djsuccess]

Dear all. Apologies if the subject exists already, i searched but could not find my exact situation.
Myself, my wife and 3 children had 6 years Tier 2 visas since 2013 (wife and children were my dependants). When it was 5 years (November 2018), I applied for ILR for just me and my wife and left my children on Tier 2 due to financial constraints. My children's Tier 2 dependant visas will now expire on 1st November 2019 while myself and my wife are due to apply for citizenship on 23 November 2019. This means i have to make new applications for my children just 3 weeks (22 days) before me and my wife will become citizens. I recently became aware that i can skip the ILR route for my children by registering them directly as citizens under section 3(1) of the nationality act 81. Can I still register my children as citizens under this section 3(1) even though me and my wife are yet to become citizens (22 days gap)? Or what is the best way to go about my children's applications please. Your advise and guidance will be much appreciated please.

Just to add that you don't automatically become a citizen the day you qualify. You become a citizen after your application has been approved and you have attended the ceremony. So in practice, the gap will be much more than 22 days.

[CR001]

How old are your children?

If they were born abroad, they are expected to hold ilr before they can register as British.

They can also only be registered as British once they hold ilr and either parent is also applying for citizenship or is already British and the other parent holds ILR.

It is only UK born children that have an entitlement to register as British and do not require ILR.

[mabilla1]

Thanks so much guys for your responses so far. Apologies i omitted some important information, i didnt want my question to be too long.

My 3 children were born abroad. My wife and children joined me in UK in 2013, then we began the Tier 2 journey together. Their ages are 15, 13, and 12 years.

[CR001]

They ALL need to have ILR first before they can apply for citizenship when either parent does or once parent(s) are already British.

There is NO exemption from ILR for your children.

For citizenship, they will ALL be subject to the Good Character requirement as they are over the age of 10, so very important that you do not let their visas expire and they become overstayers.

Whoever told you that they don't need ILR did not understand the difference in citizenship routes between UK born and non UK born children.

[mabilla1]

Dear all. Apologies if the subject exists already, i searched but could not find my exact situation.
Myself, my wife and 3 children had 6 years Tier 2 visas since 2013 (wife and children were my dependants). When it was 5 years (November 2018), I applied for ILR for just me and my wife and left my children on Tier 2 due to financial constraints. My children's Tier 2 dependant visas will now expire on 1st November 2019 while myself and my wife are due to apply for citizenship on 23 November 2019. This means i have to make new applications for my children just 3 weeks (22 days) before me and my wife will become citizens. I recently became aware that i can skip the ILR route for my children by registering them directly as citizens under section 3(1) of the nationality act 81. Can I still register my children as citizens under this section 3(1) even though me and my wife are yet to become citizens (22 days gap)? Or what is the best way to go about my children's applications please. Your advise and guidance will be much appreciated please.

Just to add that you don't automatically become a citizen the day you qualify. You become a citizen after your application has been approved and you have attended the ceremony. So in practice, the gap will be much more than 22 days.

That's correct, many thanks. I meant to say me and my wife are due to apply for citizenship 22 days after my children's visa will expire. So you are very correct that the gap will be 22 days + X

[mabilla1]

They ALL need to have ILR first before they can apply for citizenship when either parent does or once parent(s) are already British.

There is NO exemption from ILR for your children.

For citizenship, they will ALL be subject to the Good Character requirement as they are over the age of 10, so very important that you do not let their visas expire and they become overstayers.

Whoever told you that they don't need ILR did not understand the difference in citizenship routes between UK born and non UK born children.

I am very certain that you can register your children born abroad as citizens directly without ILR route under section 3(1) sir. 100%. My only fear is that there is a gap in my own case, as neither me nor my wife will be citizen just yet when my children's visa get expired. If for example me and my wife become citizens before our children's visas expire, then i am sure we can apply citizenship under section 3(1) for them.

Please see pages 27 and 28 in the below document:

https://assets.publishing.service.gov.u ... 4.0ext.pdf

[CR001]

They ALL need to have ILR first before they can apply for citizenship when either parent does or once parent(s) are already British.

There is NO exemption from ILR for your children.

For citizenship, they will ALL be subject to the Good Character requirement as they are over the age of 10, so very important that you do not let their visas expire and they become overstayers.

Whoever told you that they don't need ILR did not understand the difference in citizenship routes between UK born and non UK born children.

I am very certain that you can register your children born abroad as citizens directly without ILR route under section 3(1) sir. 100%. My only fear is that there is a gap in my own case, as neither me nor my wife will be citizen just yet when my children's visa get expired. If for example me and my wife become citizens before our children's visas expire, then i am sure we can apply citizenship under section 3(1) for them.

Please see pages 27 and 28 in the below document:

https://assets.publishing.service.gov.u ... 4.0ext.pdf

Not many have had success with this and those that do, it is usually very small children usually under the age of 5 who also already have a British sibling and both parents are applying or are already British. Your children are closer to being adults than small children.

Page 30 onwards of the same link also clearly states that Indefinite leave and 'free from immigration time restrictions' are required for children. There don't appear to be any 'exceptional circumstances' in what you describe other than saving some money by avoiding ILR for them.

Your children will be overstayers, with that comes no free NHS and a range of other issues.

You risk their applications being refused and them having no valid leave to remain in the UK.

[mabilla1]

Thank you for your response sir.
I didn't mention about my last daughter (my 4th child) because she was born here and that is straight forward. She is 5 years old. Does that help the other 3 children's application in any way?

As for the 3 children born abroad, Page 29 of same link clarifies that:

It will rarely be right to register a child neither of whose parents is or is about to
become a British citizen. However, each case must be considered on its individual
merits and there may be exceptional circumstances to justify registration in a
particular case such as:
• older children (16 and above) who have spent most of their life in the UK or
children who require citizenship to follow a particular career such as in the
Armed Forces
• the child’s future clearly lies in the UK
• the person making the application has day-to-day responsibility for the child’s
upbringing and is, or is about to become, a British citizen

I read the above to mean that there are exceptional circumstances to justify their registration , and he third bullet point highlighted means i may be able to apply for my 3 children under section 3(1) even when i am yet to become citizen i.e. "..or is about to become, a British citizen".

I think i have a good case under the above section, but I only wanted to be sure i am reading the correct document.

[CR001]

It is your choice if you choose to take the risk and have your older teenage chidlren classed as overstayers with no legal right to remain in the UK.

Note that there is no appeal right for refused citizenship applications. You also lose the fees paid. You have a reconsideration request option, which can take many months and costs almost £400 each or JR process which costs a lot of money.

[mabilla1]

I have only come here to seek for clarifications, if i knew it all i won't come here to seek for clarifications. So i appreciate responses from you and all. What i was expecting though, is for someone to advise me accordingly that my last referred "exceptional circumstances" on third bullet point are (or not) applicable to me or something like that. Thanks for your support. I want to be guided with facts, hence why i am here.

[CR001]

I have already stated the requirements and the many refusals we have seen on the forum of people who tried to save ILR fees and go directly for citizenship and the resultant mess this created in a childs immigration history (especially older children). There is absolutely no guarantee with section 3(1) applications for children born abroad and HO does not have to exercise discretion either and can refuse outright due to them not holding ILR and if their visas have expired (which they would have) being overstayers which falls under the Good Character requirements. You would then have to challenge HO in a judicial review through the courts, which is very expensive and if you lose, you will likely have to pay HOs costs too.

You appear simply to want to save money by skipping ILR for the children. You and your spouse are not British and haven't applied yet. Not sure what 'exceptional circumstances' you believe apply to your teenage children. They have not spent all their life here from shortly after birth either, which would have made a stronger case.

We all would have liked to save the ILR fees for our kids but the majority of us paid the fees and followed the proper processes to avoid issues. Citizenship is a privilege, not a right or entitlement for those from abroad.

[mabilla1]

Thank you, your time and advice much appreciated!

[secret.simon]

I am very certain that you can register your children born abroad as citizens directly without ILR route under section 3(1) sir. 100%. My only fear is that there is a gap in my own case, as neither me nor my wife will be citizen just yet when my children's visa get expired. If for example me and my wife become citizens before our children's visas expire, then i am sure we can apply citizenship under section 3(1) for them.

Please see pages 27 and 28 in the below document:

https://assets.publishing.service.gov.u ... 4.0ext.pdf

Also read Page 30 of the same document.

As a general principle, the expectation is that there should be a staged approach to permanent residence and citizenship. This means that the child will first achieve one of the following before being considered for British citizenship:
• indefinite leave (IL)
• permanent residence under the European Economic Area (EEA) regulations
Given this you should normally only register a child under section 3(1) who has not been granted IL or permanent residence where there are strong compelling compassionate circumstances to do so.

There do not seem to be strong compelling compassionate reasons in your case.

But of course, we are here only to advise and you are of course free to apply anyway.

[drbalony]

Not all kids born abroad need to pass thru ilr. I used this home office disCretion and got my kids naturalised from tier 2 visa

[Djsuccess]

Not all kids born abroad need to pass thru ilr. I used this home office disCretion and got my kids naturalised from tier 2 visa

It might have worked for you. But the OP has an extra concern, which is that the children's current visa would have expired and probably become overstayers by the time he applies for naturalisation. To fulfil the continuous legal stay for the children, the OP will need to apply for ILR for them.