Irish Citizen

[ahussa]

Hey

Know of a child who is Malaysian but born in Ireland. Child has Irish Passport (dont know how) expiring Nov 2015. On passport it says EIRE. Is now 9 or 10 years old. Mother is Malaysian National. Father do not know nationality, and no contact. Mother and child in the UK.

Mother made application under European regulations as primary carer of british citizen but refused. Application made on basis of Zambrano, and was made on EEA 2 Residence Card. Refused.

What options are available for child and mother for them to get Indefinite Leave To Remain in the UK?

[Obie]

Why was it refused is the starting point?

[ahussa]

UKBA said that they are refusing on basis of Ruiz zambrano. That means that the applicant i.e in this case the mother must demonstrate that they are the sole carer of a dependent british citizen with no other right of residence in the uk and removing them from the uk would mean the british citizen would also have to leave the UK.

This is what is written in the refusal.

[el patron]

What county was the child born in (it will say on the passport at place of birth)? If the child was born on or before 31st December 2004 in the island of Ireland it is entitled to Irish nationality purely by birth.

If the child has Irish nationality I wonder why the application was made as the sole carer of a British Citizen?

[ahussa]

it is EIRE passport.Place of Birth is ARD MHACHA/ARMAGH. Dont know where that is. From google it says Northern Ireland. Date of Birth is 23 Dec 2004.

it was a EEA 2 Residence Card application which was made, is that not for non EEA nationals making application as family members iof EU citizens. The child in this case is EU citizen.

Please advise

[howlong]

I believe the child must have obtained Irish citizenship by birth as Armagh is in Northern Ireland which is also part of UK. Also, I personally think that you need to register your child as a British citizen before qualifying to appy under Zambrano.In order for the child the appply Birtish ciitzen , please see the link below:
http://www.ukba.homeoffice.gov.uk/briti ... /borninuk/
Can I register as a British citizen if I was born in the United Kingdom on or after 1 January 1983 and lived there up to the age of 10?To register as a British citizen you must:
have been born in the United Kingdom; and
have been born on or after 1 January 1983; and
be 10 years of age or over; and
have spent no more than 90 days outside the United Kingdom in each of the first 10 years of your life.

Alternatively, the mother could apply under Chen visa (primary carer of an EU child-Irish child) for derivative residence card.
or some Irish child was given Permanent resident satus, and the mother could probably apply discretionary leave to remain (DLR)
However, it is best recommended to seek advise from legal profesional to review the applicants circuamstances

[dalebutt]

If child was born in Northern Ireland, she would acquire British Citizenship by Birth if at least one of the parents have settled status in the UK, You cannot as well register a child who is already a British Citizen.

Irish Citizens in the UK acquire settled status from day one of entering the UK, they cannot apply to be granted for something which they already have. I believe OP can make application for a DLR, Chen might not be a good idea as it doesn't come with right to work.

[wiggsy]

If child was born in Northern Ireland, she would acquire British Citizenship by Birth if at least one of the parents have settled status in the UK, You cannot as well register a child who is already a British Citizen.

Irish Citizens in the UK acquire settled status from day one of entering the UK, they cannot apply to be granted for something which they already have. I believe OP can make application for a DLR, Chen might not be a good idea as it doesn't come with right to work.

CHEN DOES COME WITH THE RIGHT TO WORK NOW... Child can be self sufficient off the parents income.

(rule change a while ago)
https://www.whatdotheyknow.com/request/ ... ing-376967 = 9th april - contains guidance for Euro...

however note:

19. Income which is as a result of the primary carer‟s current right to work in the UK (where that right arises as a result of a previous grant of leave under the Immigration Rules ) can be taken into account when assessing the self-sufficiency of the child and family members. However, income which can only be obtained as a result of a future right to work under the Regulations attached to a Chen right cannot be taken into account where the applicant does not already have sufficient resources to meet the Chen criteria.

Note: as child is irish, its a chen application, not Zambrano. Zambrano application is based on a british child.

as child is now 10 - if they have always lived in uk, they can apply for naturalisation of the child on that basis... - however, if mother was settled in the uk at birth, as mentioned, the child will have dual nationality.. (irish and BC.)

PS: expiration of irish passport does not matter... child will not lose citizenship when passport expires. passport can be renewed
http://www.ukba.homeoffice.gov.uk/briti ... /borninuk/
Sec 1(4)

dont see the point in registering child as british though at this stage. child has right to live etc in uk as they are irish.

You can apply for right to remain in FLR(o) due to irish citizen being settled in uk too. (just like British child) - if they have lived here longer than 7 years (which seems likely...?)

[ahussa]

child will be turning 9 this december.

Child mother is Malaysian national and so does not have right to stay in UK. The father not sure about his status and no contact anymore.

what need to know is first, does child need to register as british citizen? Second, what application can mother make?

[howlong]

sThe mother can
1) Apply derivative residence card based on Chen, mother still needs to prove of sufficent fund in the account to accommodate the child and and herself or someone supporting them, before the mother is legally working.Chen does allow work.Also comprehensive health insurance is required for both mother and Irish child

2) FLR(0)/DLR based of Irish child /living in Uk for more than 7 years as wiggsy mentioned above

The child needs to complete 10 years continous stay in UK no more than 90 days outside UK in order to register as British citizen, Need to be born in UK, Northern Ireland is part of UK.
As the child is 9 years old now, he/she needs to wait until reaches 10 years old to register as British citizen.
HAs the child been living in UK since born continously?

[ahussa]

Hello,

yes child has been living in UK continuously since being born in UK.

I was looking at the website on the case of Chen, i quote as follows:-

Following the ruling by the European Court of Justice (ECJ) in the case of Chen (ECJ C-200/02) the parent(s) or primary carer of an EEA national child is entitled to reside in a Member State with a self-sufficient EEA national child solely to facilitate the child in exercising their Treaty rights. The child must have comprehensive sickness insurance and be self-sufficient. This means that they must not rely on funds earned by a non-EEA national parent(s) or primary carer in the UK, unless this comes from legal employment or self-employment (if the parent(s) or primary carer is in the UK on a work permit).

In cases where the non-EEA national parents or primary carer wishes to reside in the UK on the basis of their relationship with an EEA national self-sufficient child, then they can apply for leave to remain under paragraph 257C of the Immigration Rules. The leave granted does not allow the parents or primary carer, the right to work in the UK and does not lead to permanent residence or indefinite leave to remain. Applications made on this basis are free of charge and should be submitted on an EEA2 form.

The Mother is now illegal. Is now not working.

Previously EEA 2 application was made but refused.

Would it be more prudent to make FLR(O) application for mother now based on 7 years continuous residence of child and then when child is 10 years of age it can apply to be recognized as British Citizen. But what application would mother make then after nonrecognition as British Citizen of child?

[dalebutt]

The 7 year rule would not apply to an Irish citizen child, the child has legal status in the UK since birth and can register as a British citizen now. And would have been able to do so before now, regardless of a 7 year rule

[ahussa]

yes but the application is now for the mother who has no legal residence in the UK.

The post above said that an FLR(O) would be a good option. The derivative residence card application is also good but problem is that mother is not working and so cant show prioof that she has funds to accommodate child.

What i was thinking was that mother makes FLR(O) application on basis of being parent of child in the UK who has resided here for over 7 years. That is the only option because child is not british citizen.

What you think?

[howlong]

I personally think, DLR/FLR (0) is the best option for the mother as she has a child with right to reside in UK (an Irish)

There are Irish children (non national parents)whom can obtain PR after exercising treaty right in UK but there they could not register as British citizen after a year of holding PR. But Irish child could register as British when the child has conpleted 10 years since birth.I personally do not undersand why but this is the real fact I am experiecing now.However this applies differently to an adult where BC can be obtain a year after PR.

[dalebutt]

Irish citizens have a right to live in the UK regardless of the EU law, Irish citizen automatically attain settled status in the UK without having to exercise EU treaty right laws just as British citizen are immune from Immigration control in Ireland.

Yes I agree DLR is an option. once again they do not have to wait for 10 years to register as a British I believe they can do so after achieving ILR under the immigration rules

[wiggsy]

The 7 year rule would not apply to an Irish citizen child, the child has legal status in the UK since birth and can register as a British citizen now. And would have been able to do so before now, regardless of a 7 year rule

Ahh. good to know that... So considering they automatically have "essentially" ILR, do they have to wait until the child is 1 (one year of non restricted leave) or is it on birth?...

Does DLR still get granted? I thought it was still a FLR visa? even if outside the rules - on a 10 yr route as opposed to 5 years.

[dalebutt]

Ahh. good to know that... So considering they automatically have "essentially" ILR, do they have to wait until the child is 1 (one year of non restricted leave) or is it on birth?...

Does DLR still get granted? I thought it was still a FLR visa? even if outside the rules - on a 10 yr route as opposed to 5 years.

They have to meet the requirement for registration and I do not think one year after birth would be enough, I think it's around 5 years before they can register as British Citizen.

""From 1 January 1983 an additional requirement was put in place that one parent should be a British citizen or 'settled' in the United Kingdom. Irish citizens are automatically deemed by British law to be "settled" in the United Kingdom.[5] Since 2 October 2000, this is a more favourable status than that given to citizens of other EU and EEA member states. The special status of Irish citizens in the UK comes from section 1(3) of the Immigration Act 1971, the legislative basis for the Common Travel Area.

It is not publicised by the Home Office but reference can be found in the Home Office Nationality Instructions, EEA and Swiss citizens (pdf)

"5.3 ... Citizens of the Irish Republic, whether exercising EEA free movement rights or not, are not normally subject to any form of immigration control on arrival in the UK because of the Republic’s inclusion in the Common Travel Area (s.1(3), Immigration Act 1971)"

and further on:

"8.3 The 2000 Regulations did not affect the position of EEA nationals entitled to remain indefinitely on some other basis, for example because they had been granted indefinite leave to remain under some other provision of the Immigration Rules, were entitled by virtue of diplomatic status to exemption from UK immigration control or because, as Irish nationals, they benefit under the Common Travel Area provisions. Persons in these categories should be regarded as having been free from any restriction under the immigration laws on the period for which they may remain."

http://en.wikipedia.org/wiki/British_na ... of_Ireland

[howlong]

The Irish child is of course has no immigration restriction in UK and in fact what is important now is to determine the best route for the mother to apply to remain in UK legally. i.e based on Irish citizenship as an EU or British citizen.

[dalebutt]

The Irish child is of course has no immigration restriction in UK and in fact what is important now is to determine the best route for the mother to apply to remain in UK legally. i.e based on Irish citizenship as an EU or British citizen.

As it's been said, the mother could rely on Chen ruling or could apply under the immigration rules for DLR.

It was not about the Irish child having immigration restriction in the UK, I was simply saying the seven years or 10 year rules doesn't apply in her case if she wishes to apply under the immigration rules, the child should also have qualified for British citizenship well before now.

[Obie]

You should qualify under Chen. Chen is less restrictive than Zambrano, the only this you will need to prove is sufficient resource.

I beg to differ with the contributors that have said, Chen confers no right to employment.

In its ammended form in Regulation 15A, there is no indication, to the contrary, that the parents of Chen applicants will not be allowed to work.

[Brigid from Ireland]

To clear up the confusion, EIRE=Ireland

Child is a citizen of Ireland.

If the mom is living in Ireland since the birth she could apply to Ireland under Zambrano. Is she living on the UK mainland or in Northern Ireland?

[dalebutt]

Sorry, seems you didn't read the whole of the posts, there doesn't appear to be any confusion that needs clearing up about Eire meaning Ireland.