certificate of entitlement (RoA)

[barkhabills]

I would be very grateful if you could help me with some advice regarding my son’s applications for certificate of entitlement. My son was born in the UK on 24th July 2012. My husband hold settled status (Indefinite Leave to remain) since 2010 and I got ILR on 21st Aug 2012. We got Indian passport for my son as I had to travel to India urgently. We applied for a certificate of entitlement (RoA) at the Mumbai VFS visa centre. To our surprise and disappointment, they have rejected RoA application. The reply states- You applied under section 2(1)(b)(i) immigration act 1971. ''You were not a common wealth citizen and your father was not citizen of UK by birth at the time of birth of the child. I am therefore, not satisfied that you have the right of abode in the United Kingdom.''

However, as per UKBA website and British Nationality Act 1981 CHAPTER 61 part 1 - my son is a British citizen as at the time of his birth one of parents was legally settled in the UK. According to Section 2 of the 1971 Act, as amended by s.39(2) of the British Nationality Act 1981 2(1)(a) my son has the right of abode.

I am not sure how to proceed from here. I can appeal against this decision however I would like to know whether I am wrong in my understanding of the rules?
Your guidance will be highly appreciated. Many Thanks

[vinny]

You are correct. Quote the Acts to them as you have done here.
Child is automatically British under 1(1)(b).
He is applying under 2(1)(a), not 2(1)(b).

[barkhabills]

Thank you very much. I will send my appeal form.

[barkhabills]

Thank you very much Vinny. We got following reply -
'' I am sorry to say that the ECO has incorrectly refused your son's application. Based on the evidence you provided, I am satisifed that your son does qualify for entry clearance. I accept this has caused you inconvenience and anxiety and I apologise for this. I am sure you can appreciate that we deal with a very high volume of applications in this office on a daily basis and unfortunately, it is inevitable that the ECO does get it wrong sometimes however I can reassure you that this is an isolated incident and it does happen rarely. I have spoken to the ECO concerned in this matter to ensure they are fully aware of this situation and to avoid this happening again in future.

I have revoked the decision to refuse the application and we will be contacting you shortly to make arrangements for your son's passport to be submitted to the British High Commission in Mumbai so that we can issue entry clearance. There will be no additional or further fee required from you.''

[s_a_n]

Vinny,
Could you please let me know the rights of kids not born in UK but father has ILR? Do they qualify for ROA or should they apply for dependant visa from India?

Regards,
s_a_n