Child born outside UK - Naturalisation

[ramkada]

Dear Admins - hope you are good and staying safe.

I got ILR in Aug-2019 and eligible to apply for Naturalisation this August and my wife is on ILR. My kid was born outside UK and is on tier-2 PBS dependant for more than 5 years now. As I understand - under "Registration at the Home Secretary’s discretion – Section 3(1) application", if a child is born outside UK and if one of the parent is applying for Citizenship and other parent has ILR, child can directly register for citizenship along with parent.

But still I am confused with the below phrase related to "Child's immigration status" section from registration-as-a-british-citizen-children-v6.0ext.pdf document available in gov.uk website, which states

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

As an example for Compelling circumstances, they mentioned about "an orphaned child, whose parents were not British is coming to the UK to be cared for by British family members and the safety of the child would be better achieved through a grant of British citizenship, rather than immigration leave"

We are the legal parents, hence Could you please clarify if I can apply my child's citizenship's along with my application or Should I have to apply for my Child's ILR first and then Citizenship?

Thank you for your time.

[CR001]

The child needs ilr before they can apply for citizenship.

There is no direct route as you have stated for children born abroad.

You should have included the child with your wife's ilr application.

[ramkada]

Hi Admins- thanks for your response.

Couple of my friends applied Naturalisation for their kids (born outside the UK) directly from Tier-2 dependant, back in 2018 and got successful, and one more friend applied in 2016 with the same scenario (Scenario: Child born outside the UK, one parent applying for Naturalisation and the other parent has ILR, Child stayed in UK for 5 years before applying for Naturalisation along with Parent). So there was definitely a way in the past to register a non-UK born child along with Parent's Naturalisation application without taking ILR for child, provided the other parent has ILR.

My only concern is - are there any rules changed around this (Section 3(1) - home secretary's discretion) since 2018? Though I don't see any updates done to "MN1: Guidance" and "Registration as British citizen: children" documents against Section 3(1) since then.

Has anyone recently applied in this category and successful. Many thanks.

[secret.simon]

The key thing to remember about registration under Section 3(1) is that it is at discretion. That is to say that the Secretary of State (in effect, the Home Office) can set any standard that it sees fit, provided that it is not "Wednesbury Unreasonable" (i.e. it is not "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."). And the policies on the exercise of discretion are regularly updated with changes in the policies of the Home Office. The examples that you have given are in the past and policies will have evolved since then.

In this case, the Home Office has stated that its policy would be to look at the child's immigration status (see from Page 27 onwards of the Registration as a British citizen: children guidance). However those requirements can be set aside if you can make an argument as to why it is imperative that the child should be registered as a British citizen without ILR/PR.

So what is your argument to have those requirements set aside and why is it so important for the child to be registered as a British citizen without ILR/PR?