uk born child to Malaysian parents with ILR

[khanth]

My wife, my first son and I all were granted ILR 3 years ago. My wife is expecting our second child. Two month after the birth of my second child, my wife wants to take my children with her to see the family in Malaysia.

As Malaysia does not allow dual nationality, we do not want to apply for British citizenship. After the birth of our second son we will apply for a Malaysian passport for him.

I want to know if I need any sort of prior permission before my wife and children land at Heathrow.

According to the Immigartion Rules Part 8 Rule 305 (please see link below), I do not think that my second child needs any sort of prior permission before landing at Heathrow

Link: http://www.ukba.homeoffice.gov.uk/polic ... les/part8/

But when I called the home office (the first time) they told me that I would need to apply for ILR for my second son.

But this did not make sense to me, so I continued to do some research and got to this rule which for me clearly says that my second child should be allowed into UK without any issues.

So I called the home office again, they told me the same thing and when I brought up the rule the person that said "You can do whatever you want to do sir" and did not want to explain anything to me.

Can anyone, especially someone who has been in this situation, please help?

[geriatrix]

See Section 4a - Children born in the United Kingdom who are not British Citizens

I believe UKBA has advised you correctly - you should either apply for ILR for your second child before he travels to Malaysia or apply for ILE (Indefinite leave to enter) from Malaysia once he gets there. Since he is not going to be a British Citizen (for reasons explained by you), your child will be subject to Immigration control and must have a valid leave to enter or remain.

regards

[JAJ]

Second child will be a British citizen whether you like it or not.

[khanth]

See Section 4a - Children born in the United Kingdom who are not British Citizens

I believe UKBA has advised you correctly - you should either apply for ILR for your second child before he travels to Malaysia or apply for ILE (Indefinite leave to enter) from Malaysia once he gets there. Since he is not going to be a British Citizen (for reasons explained by you), your child will be subject to Immigration control and must have a valid leave to enter or remain.

regards

I don't understand why you are saying what you are saying as my second child will satisfy all the conditions of Immigration Rules Part 8 Rule 305 (see below).

Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom

305. The requirements to be met by a child born in the United Kingdom who is not a British Citizen who seeks leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom are that he:

(i) (a) is accompanying or seeking to join or remain with a parent or parents who have, or are given, leave to enter or remain in the United Kingdom; or

(b) is accompanying or seeking to join or remain with a parent or parents one of whom is a British Citizen or has the right of abode in the United Kingdom; or

(c) is a child in respect of whom the parental rights and duties are vested solely in a local authority; and

(ii) is under the age of 18; and

(iii) was born in the United Kingdom; and

(iv) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(v) (where an application is made for leave to enter) has not been away from the United Kingdom for more than 2 years.

Furthermore, if what you say is correct we'll have to pay £750 everytime we have a child. Surely, that is not right!

[geriatrix]

Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom

You are quoting a paragraph which clearly states "Requirements for leave to enter or remain" .. essentially meaning that a leave to enter/remain application must be made by people in this category and the "requirements" spelled out must be met for a positive decision ... and then you claim that there is no need for a permission to enter / remain, in accordance with the given para.

The fact that your child meets all the requirements just tells you that an application for leave to enter/remain is likely to be approved. Nothing more!

If you make an effort to read through the document I had provided the link for in my earlier response, things will become crystal clear.

regards

[khanth]

Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom

You are quoting a paragraph which clearly states "requirements for leave to enter or remain" .. essentially meaning that a leave to enter/remain application must be made and the "requirements" spelled out must be met for a positive decision ... and then you claim that there is no need for a permission to enter / remain, in accordance with the given para.

The fact that your child meets all the requirements just tells you that an application for leave to enter/remain is likely to be approved. Nothing more ... but it doesn't (in anyway) mean that you don't have to apply for your child's leave to enter/remain!

If you make an effort to read through the document I had provided the link for in my earlier response, things will become crystal clear.

regards

I did read the link you sent me but nothing in the document said to me that I cannot make an application to the Immigration Officer at the port of entry as you seem to be suggesting.

If you look at Rule 297 (see below or see Link: http://www.ukba.homeoffice.gov.uk/polic ... les/part8/), you will note that there is an extra condition which requires the person to have a entry clearance for the purpose of entry. But Rule 305 does not have that condition. This is highlighted in respect of Rule 305 in this document (see Part 2: 6. ENTRY CLEARANCE FOR CHILDREN BORN IN THE UNITED KINGDOM WHO ARE NOT BRITISH CITIZENS at the bottom of Page 3):

http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

This document also seems to be suggesting that we can apply for ILR for my second son at the port of entry.

Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom
297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity.

[geriatrix]

I did read the link you sent me but nothing in the document said to me that I cannot make an application to the Immigration Officer at the port of entry as you seem to be suggesting.

Personally have never heard of an application for leave to enter being made to an Immigration Officer at the port of entry. AFAIK, such an application is made at the local British High Commission where an Entry Clearance Officer processes your application.

I didn't say that you can (or cannot) make an application to the Immigration Officer at port of entry! If you read my first response carefully, you'll note that it says

you should either apply for ILR for your second child before he travels to Malaysia or apply for ILE (Indefinite leave to enter) from Malaysia once he gets there

The text in black refers to application to UKBA for leave to remain and the text in blue refers to an application to the ECO at local overseas BHC for leave to enter (EC, if not ILE).

Read 14.7 - Children born in the UK on or after 1 January 1983 but who are not British Citizens ( Rules Paragraphs 304 and 305 ) carefully.

The bottomline is - if you decide that your son not be a British citizen then he will be subject to immigration control, and thus can be denied entry to UK (when he attempts to return from overseas) if he does not have a valid leave to enter / remain.

regards

[geriatrix]

Furthermore, if what you say is correct we'll have to pay £750 everytime we have a child. Surely, that is not right!

Well, it is you who don't want your child to be a British citizen, a privilege he is entitled to! Think of it as a fine imposed for renouncing British citizenship!

regards

[JAJ]

The bottomline is - if you decide that your son not be a British citizen

If child is born in the U.K. and at least one parent has ILR then the parents cannot "decide" as to whether the child is a British citizen or not.

British citizenship is mandatory in these circumstances. Not optional.

There may be the option of getting the child a Malaysian passport with a U.K. Right of Abode stamp.

[Christophe]

Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom

You are quoting a paragraph which clearly states "Requirements for leave to enter or remain" .. essentially meaning that a leave to enter/remain application must be made by people in this category and the "requirements" spelled out must be met for a positive decision ... and then you claim that there is no need for a permission to enter / remain, in accordance with the given para.

It is the parents who are being referred to as having indefinite leave to enter or remain, and the child being referred to is not a British citizen. But a child born in the UK to a parent who has indefinite leave to remain at the time of the birth is a British citizen, from birth.

[geriatrix]

British citizenship is mandatory in these circumstances. Not optional.

Never denied that!.

If child is born in the U.K. and at least one parent has ILR then the parents cannot "decide" as to whether the child is a British citizen or not.

Why can't the parents decide that the child be a Malaysian citizen (and renounce British citizenship as a result)? Correct me if I am wrong here - both parents have ILR (not yet British citizens) so they are still Malaysian citizens and the child can therefore be a Malaysian citizen by descent. Yes, the child will also a British citizen but a Malaysian citizen is not allowed to hold citizenship of any other country. So if parents opt for Malaysian citizenship for the child, the child will have to give up his British citizenship.

AFAIK, if this is the course that the parents wish to take (so it seems as suggested by OP in his initial query), the child will then require a valid leave to remain / enter (or, as you say, right of abode) endorsed on his Malaysian passport.

regards

[Christophe]

Why can't the parents decide that the child be a Malaysian citizen (and renounce British citizenship as a result)? Correct me if I am wrong here - both parents have ILR (not yet British citizens) so they are still Malaysian citizens and the child can therefore be a Malaysian citizen by descent. Yes, the child will also a British citizen but a Malaysian citizen is not allowed to hold citizenship of any other country. So if parents opt for Malaysian citizenship for the child, the child will have to give up his British citizenship.

AFAIK, if this is the course that the parents wish to take (so it seems as suggested by OP in his initial query), the child will then require a valid leave to remain / enter (or, as you say, right of abode) endorsed on his Malaysian passport.

regards

I guess this is one of those cases where the nationality laws of two countries conflict. I don't think that the parents can renounce British citizenship on the part of their minor child. They can apply for a right of abode certificate in the child's Malaysian passport, and probably (in the circumstances) the Malaysians would be happy with that, although the right of abode certificate would be held on the basis of the British citizenship. In theory, the British authorities will not endorse the non-British passport of a British passport with anything other than a right of abode certificate, so they should not give "leave to remain" for a person who doesn't require "leave" at all.

But probably the right of abode certificate is the way to go...

[khanth]

From a immigration officers perspective, he has to decide if the child is a British citizen or not. To do that he will check the Immigation Rules which says:

Requirement for a person not requiring leave to enter the United Kingdom to prove that he has the right of abode

12. A person claiming to be a British citizen must prove that he has the right of abode in the United Kingdom by producing either:

(i) a United Kingdom passport describing him as a British citizen or as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom; or

(ii) a certificate of entitlement duly issued by or on behalf of the Government of the United Kingdom certifying that he has the right of abode.

Link to source: http://www.ukba.homeoffice.gov.uk/polic ... les/part1/

So my second son will fail this test. So the Immigartion Officer will have to conclude that my second son is not British.

So now he will have to check whether he qualifies as "Child born in UK but not British citizen".

Rule 305 says:

Requirements for leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom
305. The requirements to be met by a child born in the United Kingdom who is not a British Citizen who seeks leave to enter or remain in the United Kingdom as the child of a parent or parents given leave to enter or remain in the United Kingdom are that he:

(i) (a) is accompanying or seeking to join or remain with a parent or parents who have, or are given, leave to enter or remain in the United Kingdom; or

(b) is accompanying or seeking to join or remain with a parent or parents one of whom is a British Citizen or has the right of abode in the United Kingdom; or

(c) is a child in respect of whom the parental rights and duties are vested solely in a local authority; and

(ii) is under the age of 18; and

(iii) was born in the United Kingdom; and

(iv) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(v) (where an application is made for leave to enter) has not been away from the United Kingdom for more than 2 years.

Link to Source: http://www.ukba.homeoffice.gov.uk/polic ... les/part8/

He will then look at the Immigration Directorate Instructions Chapter 8 Section 4a which also refers to Chapter 8 Section 4 Annex P.

Links to these two documents:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

and

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

After analysing these I cannot see any reason for the Immigration Officer to reject a claim for Indefinite Leave to Enter.

Annex P (bottom of page 3) even says that an Entry Clearance is not needed for non visa nationals. (Note: Malaysia is not on the visa national list).

Do any of you see any flaw in this thinking?

Thanks.

[UKBAbble]

Unfortunately immigration officers are not allowed to grant ILE so in the absence of an ILR or ROA vignette they can only give a short conditonal landing to enable an in country application to be made.

[khanth]

If I apply for the "No Time Limit" stamp to be on my new passport and add my second child (who was born in UK but does not have ILR) to the application as my dependant, will the Home Office put the stamp on his passport.

Thanks.

[UKBAbble]

If I apply for the "No Time Limit" stamp to be on my new passport and add my second child (who was born in UK but does not have ILR) to the application as my dependant, will the Home Office put the stamp on his passport.

Thanks.

Yes.

[JAJ]

If I apply for the "No Time Limit" stamp to be on my new passport and add my second child (who was born in UK but does not have ILR) to the application as my dependant, will the Home Office put the stamp on his passport.

No they won't, as child will be a British citizen. But you can have a Right of Abode stamp placed in his passport if you wish.

[JAJ]

Why can't the parents decide that the child be a Malaysian citizen (and renounce British citizenship as a result)? Correct me if I am wrong here - both parents have ILR (not yet British citizens) so they are still Malaysian citizens and the child can therefore be a Malaysian citizen by descent. Yes, the child will also a British citizen but a Malaysian citizen is not allowed to hold citizenship of any other country. So if parents opt for Malaysian citizenship for the child, the child will have to give up his British citizenship.

Because the law doesn't allow it.

Adults can renounce British citizenship but there is absolutely no way for parents to renounce or otherwise cancel the British citizenship of a child.

[sakura]

Why can't the parents decide that the child be a Malaysian citizen (and renounce British citizenship as a result)? Correct me if I am wrong here - both parents have ILR (not yet British citizens) so they are still Malaysian citizens and the child can therefore be a Malaysian citizen by descent. Yes, the child will also a British citizen but a Malaysian citizen is not allowed to hold citizenship of any other country. So if parents opt for Malaysian citizenship for the child, the child will have to give up his British citizenship.

Because the law doesn't allow it.

Adults can renounce British citizenship but there is absolutely no way for parents to renounce or otherwise cancel the British citizenship of a child.

I guess the only thing would be for the rules to change so that British citizenship to children is given only when at least one parent is a citizen him/herself (i.e. no longer to people on ILR/PR). I doubt many people (migrants) would want this change, though (although it is being touted in the proposed changes, right?).

[khanth]

If I apply for the "No Time Limit" stamp to be on my new passport and add my second child (who was born in UK but does not have ILR) to the application as my dependant, will the Home Office put the stamp on his passport.

No they won't, as child will be a British citizen. But you can have a Right of Abode stamp placed in his passport if you wish.

I want my second child to have something permanent like ILR rather than Right of Abode stamp (costing £135 or possibly much more next time) which we have to renew each time he gets a new passport. Is there anything permanent that we can get for him without losing Malaysian citizenship?

[sakura]

If I apply for the "No Time Limit" stamp to be on my new passport and add my second child (who was born in UK but does not have ILR) to the application as my dependant, will the Home Office put the stamp on his passport.

No they won't, as child will be a British citizen. But you can have a Right of Abode stamp placed in his passport if you wish.

I want my second child to have something permanent like ILR rather than Right of Abode stamp (costing £135 or possibly much more next time) which we have to renew each time he gets a new passport. Is there anything permanent that we can get for him without losing Malaysian citizenship?

The problem is that he is not entitled to have ILR or anything other than the RoA stamp (or else a British passport). Unfortunately the RoA stamp is the only solution (I think). If his Malaysian passport is valid for 5 or 10 years, £135 isn't so bad (plus I believe that you'd also have to pay to get the ILR vignette transferred to a new passport anyway).

[geriatrix]

Adults can renounce British citizenship but there is absolutely no way for parents to renounce or otherwise cancel the British citizenship of a child.

Thank JAJ.

In that case, given the fact that Malaysia does not allow dual citizenship will the Malaysian govt. issue a passport to the child?? Just wondering!

regards

[farneybunny]

In that case, given the fact that Malaysia does not allow dual citizenship will the Malaysian govt. issue a passport to the child?? Just wondering!

The Malaysian Govt will issue a passport to the child as long as the 'father' is malaysian. They will not issue a Malaysian passport if the father is not Malaysian. (They just don't care who the mother is unfortunately ....)

I was actually adviced by somebody that even if u want british passport and malaysian passport for your bouncing baby, you could but just don't tell the malaysian govt. I didn't do it cos I wouldn't have gotten it as my husband is not Malaysian anyway.

Why not get a british passport for your child and apply for Malaysian PR? You could easily do that before your child turns 6. British passport for the child so he doesn't have to go through hell going anywhere in this world and Malaysian PR so he/she can enjoy the benefit of being a Malaysian as well. Then voila, bob is your uncle!

Good Luck

[JAJ]

I guess the only thing would be for the rules to change so that British citizenship to children is given only when at least one parent is a citizen him/herself (i.e. no longer to people on ILR/PR). I doubt many people (migrants) would want this change, though (although it is being touted in the proposed changes, right?).

It is not being touted as part of the proposed changes, at least as far as I know. However, it may well happen due to the vast expansion of ILR and PR under this government.

[Ben]

Why not get a british passport for your child and apply for Malaysian PR? You could easily do that before your child turns 6. British passport for the child so he doesn't have to go through hell going anywhere in this world and Malaysian PR so he/she can enjoy the benefit of being a Malaysian as well. Then voila, bob is your uncle!

Good Luck

Because Malaysian permanent residence and Malaysian citizenship is very different. The child would also be unable to transmit Malaysian citizenship to his own children.