Citizenship for Child - Divorced and Kid lives with Ex in India

[ukindian23]

Hi All
I am in a peculiar situation and need your advise.

I am currently in ILR and will be eligible to apply for British Citizenship in January.

I am divorced 3 years ago and my ex lives in India with my kid who is 10 years now. We lived together in UK briefly and later got divorced in India. My kid never came to UK. When I got ILR I consulted a solicitor to apply for his ILR and he advised to directly apply for citizenship for my kid after I become citizen.

So, please advise the procedure to apply citizenship for my kid either along with me or after I get citizenship. What are the steps involved and do I need anything from my ex to apply citizenship for my kid.

I have gone through the Home Office site and I couldn't get a proper guidance for my situation.

Thanks

[vinny]

If your kid was born in the UK, then kid is entitled to register as a British citizen. Else, registration is subject to discretion under Section 3(1), but it’s likely to fail and be a waste of fees.

[ukindian23]

Hi Vinay
Thanks for the quick reply.
My kid is not born in UK and never been to UK. So, as I understand, it has to be

registration is subject to discretion under Section 3(1).

But as a minor and dependent of mine, doesn't he have the right to be citizen of the parent. And in my case, please advise if my Ex needs to provide any approval or documentation. Or can I directly apply for his citizenship under Section 3(1) along with my application or after I become a citizen?

Thanks

[vinny]

If you were British otherwise than by descent at the time of his birth, then he would automatically be British.

Unfortunately your British citizenship, acquired after his birth, satisfies only one of many requirements for registration by discretion.

[ukindian23]

Hi
Thanks again.

Please help with other queries

1. Can I apply along with my citizenship application
2. Does my kid need to be in UK with me when applying
3. Do I need any approval or documentation from my Ex

Any other inputs helpful that I may need to know to submit my kid's citizenship.

Thanks

[CR001]

1. No you can't. Your child has no claim to citizenship.

2. Older children who were born abroad to non British parents generally require 2 years residence and must hold ilr first.

3. Yes, the other parent has to consent if a child is eligible. Your child is not eligible.

[secret.simon]

But as a minor and dependent of mine, doesn't he have the right to be citizen of the parent.

No they don't.

Citizenship by registration under Section 3(1) is at discretion and is not a right. The child needs to demonstrate that the child's future is in the UK.

The general rule for children born outside the UK to non-British (at the time of the child's birth) parents is that the child follows the immigration status of the less-privileged parent. For the child to move to the UK to acquire British citizenship, either the ex will have to move to the UK on a visa of their own OR you would need to demonstrate that you have sole responsibility of the child (which you can't at the moment as the child lives with the other parent).

Mere consent from the ex will not be enough. You will need to prove sole responsibility, otherwise your child's entire UK immigration will be tied to that of the less-privileged parent, in this case, your ex. If you ex does not move to the UK, neither can the child.

In this case, the next course of action, as the child is 10 years old, would be
a) to get your ex to give you sole custody of the child, ideally by court order
b) to apply for ILE on their behalf and for the child to move to the UK,
c) then after two-three years of residence in the UK, to apply for registration under Section 3(1).

[ukindian23]

Thanks a lot for more replies. I have better clarity now.

A few other questions based on the details shared by you.

1.What is the definition of Less Privileged Parent?

The child follows the immigration status of the less-privileged parent

2. What is the age cutoff of Older Children and is there any other criteria that they can be directly be allowed to apply for citizenship?

Older children who were born abroad to non British parents generally require 2 years residence and must hold ilr first.

3. I am assuming you meant ILR below.. What does applying on their behalf mean?

to apply for ILE on their behalf and for the child to move to the UK,

4. Is it 2 or 3 years below. What is the criteria of this duration? Can it be reduce or does it increase with passage of time. Do I need to apply this before the kid attains 18 or can I do it anytime?

Then after two-three years of residence in the UK, to apply for registration under Section 3(1).

For this point below, can I please send PM to one of you as there is a confidential agreement as part of our divorce that I do not wish to share publicly. That might make it easy for my kid.

to get your ex to give you sole custody of the child, ideally by court order

Thanks

[secret.simon]

1.What is the definition of Less Privileged Parent?

The child follows the immigration status of the less-privileged parent

In this case, by "less-privileged parent", I mean the parent who has either a dependent visa or a limited visa to reside in the UK or indeed, no right to reside in the UK, in contrast to the parent with ILR or British citizenship.

2. What is the age cutoff of Older Children and is there any other criteria that they can be directly be allowed to apply for citizenship?

Older children who were born abroad to non British parents generally require 2 years residence and must hold ilr first.

The application for registration must be made by the 18th birthday of the child. Any later and the child will have to naturalise in their own right, meeting all the requirements that an adult needs to.

The only children who do have an entitlement to register as British citizens are those born in the UK and who subsequently meet the required conditions (so children born in the UK whose parent subsequently acquires ILR OR children born in the UK who can prove that they resided in the UK for the first ten years of their life in the UK without any absence of more than 90 days per year).

3. I am assuming you meant ILR below.. What does applying on their behalf mean?

to apply for ILE on their behalf and for the child to move to the UK,

ILE (Indefinite Leave to Enter) is the same as ILR, but issued outside the UK, generally to children both of whose parents have ILR or British citizenship. In this case, if you have sole responsibility of the child (ideally by court order), you will be able to apply for ILE.

As children can't make applications, the application will be made by one parent (most likely you, as the solely responsible parent) on the child's behalf.

4. Is it 2 or 3 years below. What is the criteria of this duration? Can it be reduce or does it increase with passage of time. Do I need to apply this before the kid attains 18 or can I do it anytime?

Then after two-three years of residence in the UK, to apply for registration under Section 3(1).

In this case, I made an error. Children 13 years and older are expected to have resided in the UK for at least 2 years and that expectation increases with age. And yes, the application must be made before the child's 18th birthday.

For this point below, can I please send PM to one of you as there is a confidential agreement as part of our divorce that I do not wish to share publicly. That might make it easy for my kid.

to get your ex to give you sole custody of the child, ideally by court order

For myself, I would say No. And I would recommend against PMing others on these forums with personal details. At the end of the day, we are strangers on a public forum. And to the best of my knowledge, none of us are lawyers. I certainly am not.

If you need to discuss legal matters, you should consult with a lawyer, which will ensure that the matters that you discuss with them are covered under client-attorney confidentiality.

[ukindian23]

Hi
Thanks again for your time in replying point-to-point in detail.

Couple of last questions based on your responses.

In this case, I made an error. Children 13 years and older are expected to have resided in the UK for at least 2 years and that expectation increases with age. And yes, the application must be made before the child's 18th birthday.

Does this mean, if I have a court order of sole responsibility, can I directly do Registration for his citizenship under Section 3(1) from India before he attains 13yrs or should I still apply for ILE. If it's ILE route, after how much time can I Register under Section 3(1) if he is below 13yrs.

Thanks

[vinny]

They expect child to be in the UK, preferably with Indefinite Leave, before registering. See also Child’s future intentions, etc., for further details.

[secret.simon]

There are two/three different stages to the process for getting your child British citizenship.

You will need to
a) Bring your child to the UK
b) Ensure that they have ILE/ILR (that may be a part of (a) above or that may be a separate process)
c) Apply to register the child as a British citizen alongside your naturalisation application

There are possibilities of failure at each stage and just because you have cleared a previous stage does not mean that the next stage will be successful.

The fact that the other parent is not resident in the UK will be a major barrier (due to potential issues with child abduction, etc), particularly at the last stage.

It is possible that the child may have ILE/ILR but can only naturalise as an adult, after their 18th birthday, meeting all the requirements for an adult to naturalise, because then they will be free of meeting any parental requirement.

As there is practically no chance of a child born abroad and who does not reside in the UK being registered as a British citizen, I am inclined to move this thread to the "Immigration for Family Members" forum, as it has essentially changed into a "how do I get my non-British child to the UK" thread.

EDIT: I tried to look up the definition of "sole responsibility" in Home Office guidance, but could not find one. I could however find one in an Upper Tribunal judgment.

Questions of "sole responsibility" under the immigration rules should be approached as follows:

i. Who has "responsibility" for a child's upbringing and whether that responsibility is "sole" is a factual matter to be decided upon all the evidence.

ii. The term "responsibility" in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.

iii. "Responsibility" for a child's upbringing may be undertaken by individuals other than a child's parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.

iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.

v. If it is said that both are not involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.

vi. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child's upbringing, that parent may not have sole responsibility.

vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child's welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

ix. The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child's upbringing including making all the important decisions in the child's life. If not, responsibility is shared and so not "sole".

Also see this Freemovement article.

[CR001]

There are two/three different stages to the process for getting your child British citizenship.

You will need to
a) Bring your child to the UK
b) Ensure that they have ILE/ILR (that may be a part of (a) above or that may be a separate process)
c) Apply to register the child as a British citizen alongside your naturalisation application

There are possibilities of failure at each stage and just because you have cleared a previous stage does not mean that the next stage will be successful.

The fact that the other parent is not resident in the UK will be a major barrier (due to potential issues with child abduction, etc), particularly at the last stage.

It is possible that the child may have ILE/ILR but can only naturalise as an adult, after their 18th birthday, meeting all the requirements for an adult to naturalise, because then they will be free of meeting any parental requirement.

As there is practically no chance of a child born abroad and who does not reside in the UK being registered as a British citizen, I am inclined to move this thread to the "Immigration for Family Members" forum, as it has essentially changed into a "how do I get my non-British child to the UK" thread.

EDIT: I tried to look up the definition of "sole responsibility" in Home Office guidance, but could not find one. I could however find one in an Upper Tribunal judgment.

Questions of "sole responsibility" under the immigration rules should be approached as follows:

i. Who has "responsibility" for a child's upbringing and whether that responsibility is "sole" is a factual matter to be decided upon all the evidence.

ii. The term "responsibility" in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.

iii. "Responsibility" for a child's upbringing may be undertaken by individuals other than a child's parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.

iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.

v. If it is said that both are not involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.

vi. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child's upbringing, that parent may not have sole responsibility.

vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child's welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

ix. The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child's upbringing including making all the important decisions in the child's life. If not, responsibility is shared and so not "sole".

Also see this Freemovement article.

Sole responsibility link below.

immigration-for-family-members/sole-res ... 13087.html

[secret.simon]

Sole responsibility link below.

immigration-for-family-members/sole-res ... 13087.html

Thanks, @CR001.

[ukindian23]

Thanks Simon and CR001. I shall thoroughly go through the links and points first and come back with any requests.