Illegitimate Thai Child Wants To Come To Uk And Become British Citizen - Visa Question

[jpb23]

Hi everyone,

Just like a lot of people I am being given the run around by the UKBA agency and other sources of misinformation. I thought my case was reasonably straightforward but I think maybe I am wrong?

I'd appreciate some help before my hair goes any whiter!

The details:

I am a British Citizen by birth and am the Father (illigetimately) of a female Thai national aged 13 years.

We have had positive DNA tests that meet the immigration requirements and am proved to be the Father.

My name is on the original birth certificate issued within one year of the childs birth.

I am no longer in a relationship with the mother (we broke up 10 years ago) however, we get on fine.

My daughter and her Mother are both keen for the daughter to come to the UK to go to school and become a British Citizen.

I have the written consent of the Mother for my Daughter to come to the UK and spend her time with us during school terms and parts of the holidays. Realisitically she will be visiting her mother for periods of 2 x 2 week slots and possilby one x 6 week slot during the summer and should meet the residency criteria ok.

I have read that I can apply for Citizenship based on these circumstances however, I am aware that she has to be in the UK for about 2 years without significant breaks before being eligible to do so. This seems positive until you look at the next issue.

The wall I keep hitting is the visa. The UKBA site says the following:

"Children cannot normally come to settle in the UK unless both parents are settled here or have been given permission to settle here".

The only exceptions are where:

• 1 parent is dead and the other is settled or coming to settle here; or
  
• the parent who is settled or coming to settle in the UK has had sole responsibility for the child's upbringing; or
  
• 1 parent is settled or coming to settle in the UK and there are serious reasons why the child must be allowed to come here.
  

None of the above applies to us. My daughter wants to be British, her mother wants her to be British and I am prepared to look after her whilst she is here like a normal Father.

How do I deal with this situation as it does not make sense that my daughter is so close to being eligible for a British Citizenship but we can't get a visa for her to settle so that she can apply for it? I am confused.

So far I have tried friends of friends in similar situations, UKBA, National Checking Agency staff and go absolutely nowhere. Does anyone know the answers with certainty or can put me in touch with someone that does?

JPB

[chantsurfer]

I do not know about this subject, but with a British farther, why can't she just get a British passport?

[jpb23]

Ah if that were the case...but if the subject interests you my friend why not wade through the 20 or so pages about it on the UKBA website or download one of their guides. You will discover why I cannot just get her a passport and why I am desperately posting here. It aint that simple mate.

[David48]

Ah if that were the case...but if the subject interests you my friend why not wade through the 20 or so pages about it on the UKBA website or download one of their guides. You will discover why I cannot just get her a passport and why I am desperately posting here. It aint that simple mate.

I'm all for positive answers ... ones that assist and educate us all.

So that our fellow members are informed ... just exactly why doesn't your daughter qualify for Duel Citizenship if you have been identified as the Child's father?

The information revealed may assist others to answer your OP (Opening Post)

[jpb23]

No worries. Simply,if you are the British born father of an illegitimate child born prior to July 2006 your child does not automatically qualify for Citizenship.

In the case that they are born before you have to prove paternity and provide other proof as discussed in my post in order to register.

[Soutpeel]

You would ask the mother to give up all rights to the child via a Thai court order and the following exception would apply...ie you become sole guardian

"the parent who is settled or coming to settle in the UK has had sole responsibility for the child's upbringing"

A collegue of mine when through something similar a few years ago, in his case the mother had died, but the UKBA still would not accept his daughter as being a British citizen, as there was surviving Thai family which inferred they were the legal guardians of a Thai citizen, he had to go to court in Thailand and get sole guardianship of his daughter and it was recorded that there were no objections for the surviving Thai family....it took a lot of time and effort but was sorted out in the end and his daughter eventually got her passport

[Satcommlee]

I cant believe the British authorities are giving you so much problems... If the mother was to accept your sole Guardianship and I'm no expert here but don't you have a Right to a family life under ECHR, get a good lawyer!

[Paul888]

As you already have the DNA test, can you not apply for British citizenship for her via form MN_1 ?

http://www.ukba.homeoffice.gov.uk/britishcitizenship/applying/applicationtypes/childregisteringasbritishcitizen/

[7by7]

Just because someone wants to be British does not mean that they have any right to become so!

As you correctly say, because the child was born prior to June 2006 and you were not married to her mother, she is not British.

But you can apply to register as such (see here), but such registrations are discretionary. You appear to have read up on that and feel that she doesn't meet the requirements; presumably because she has been living in Thailand with her mother all of her life?

Also, you say that you are British by birth. Do you mean British by descent, or are you British otherwise than by descent?

British by descent means that you inherited your British nationality from one or both of your parents; usually because you were born outside the UK or a qualifying territory.

British otherwise than by descent means that you are British in your own right; usually because you were born in the UK or a qualifying territory and at least one of your parents is British or is legally settled in the UK or the qualifying territory where you were born, or by some other means such as naturalisation.

British nationality can only descend one generation, so if you are British by descent then you daughter will not be British, even had she been born after June 2006, neither will she satisfy the requirements for discretionary registration linked to above.

To obtain a child settlement visa for her is going to be extremely difficult. From what you have said, she simply does not meet the requirements of the immigration rules.;

It could be argued that Para 297(i)(f) applies,

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;

but that the child would have a better life in the UK would not be seen as a 'serious and compelling family or other consideration.'

In any application, the ECO will want answers to the following. Over the last 10 years since you separated:-

• What contact have you had with the child?
  
• How often have you visited her in Thailand?
  
• How often and how much have you contributed financially to her upbringing?
  
• What evidence do you have of the above?
  
• Why do you now want the child to live with you after she has lived with her mother for 10 years?
  

Even were the mother to transfer legal custody of the child to you, this would almost certainly be seen by the ECO as the ruse it is. Sole responsibility is more important than custody; and you have not been exercising this for any period at all; the child has been living with her mother.

Forget the ECHR and the right to family life. This is a qualified right, and a signatory's immigration law takes precedence.

You have a long and difficult task ahead of you, with no guarantee of success. I suggest that you seek professional advice.

If you are in Thailand, I recommend two of the forum sponsors; either ThaiVisaExpress or VisasPlus, if in the UK then any OISC registered advisor.

Edited September 4, 2012 by 7by7

[bobrussell]

There is little reason why the child should not be able to get a British passport. I am probably rehashing a previous link but:

Since 1 July 2006 both parents are able to pass on their British citizenship to their children even if they are not married providing there is satisfactory evidence of paternity. We will normally register any child born before 1 July 2006 to a father who is a British citizen father under section 3(1) if the requirements below are met:

• we are satisfied about the paternity of the child; and
  
• we have the consent of all those with parental responsibility; and
  
• we are satisfied that if the parents were married:
  - the child would have an automatic claim to British citizenship; or
  - the child would have an entitlement to registration under sections 1(3), 3(2) or sections 3(5) of the British Nationality Act 1981; or
  - we would normally have registered the child under section 3(1); and
  
• if the child is over 10 year of age, they are of good character.
  

In these circumstances, registration under section 3(1) of the British Nationality Act would be at our discretion, if we think it is reasonable under the circumstances.

To be satisfied of the child's paternity we would usually expect you to provide:

• a birth certificate issued within one year of the child's birth naming the child's father; or
  
• any other evidence such as DNA test reports or court orders relevant to paternity.
  

One of my nephews fits into this category and his British passport was issued uneventfully once (in their case) it was shown my brother was married to the mother of his child. You say that you have a DNA test proving paternity.

Keep at them - this is not generally considered particularly 'discretionary'. Ask them why you are getting the run around!

I would read this guidance as clearly indicating nationality is an 'accident of birth' so you either are entitled to a British passport or you are not. The only discretionary element comes in if the child was born before 1st June 2006 and the above states that it is the norm to accept these children as British!

If they reject the application you do have a right to appeal!

Edited September 4, 2012 by bobrussell

[jpb23]

I fear 7by7 is correct.

(I am British otherwise than by descent - born here to British parents).

The reality is the Mother and I fell out and I was kept from seeing my daughter due to threats and she has lived in Thailand all her life with her Mother.

We've since made up for the benefit of the child's future but in the eyes of the UK I do not have sole responsibility nor can I prove it. I've had no contact, or provided any funds since 2003.

How I can build a case for getting her visa and then the citizenship is beyond my skill. Would anyone recommend someone in the UK that they have used?

Thanks

JPB

[Eff1n2ret]

There is little reason why the child should not be able to get a British passport.

I agree. The criteria in the link you quote don't require the OP to prove his previous responsibility for the child, merely his nationality and paternity and the consent of all who currently have responsibility for her (and that she's never been in trouble). He seems to be confusing the requirements for naturalisation as a British citizen with obtaining settlement in the UK as a Thai citizen.

He should forget about fulfilling visa requirements and start the process for getting the child registered as a British citizen. He can start here:-

http://www.ukba.homeoffice.gov.uk/britishcitizenship/applying/applicationtypes/childregisteringasbritishcitizen/

and click on the link to 'Guide MN1'. On page 11 he will find the info relevant to his situation headed "Registration at the Home Secretary's discretion - Section 3(1) application.

[bobrussell]

Sorry - I made an assumption. Being British otherwise than by descent does change things.

[TommoPhysicist]

No worries. Simply,if you are the British born father of an illegitimate child born prior to July 2006 your child does not automatically qualify for Citizenship.

In the case that they are born before you have to prove paternity and provide other proof as discussed in my post in order to register.

You just apply for a British passport for the kid.

Proof of paternity will be taken as the Thai birth certificate translated into English and a letter of confirmation from the mother.

Nothing to do with the UKBA at all, just the passport office.

(Eff beat me to it)

(I am British otherwise than by descent - born here to British parents).

This statement makes no sense.

If one of your parents was British and born in Britain, then you are British by descent.

If you were born outside of Britain, but one of your parents was British and born in Britain, your child is also British by descent, but will need you fathers or mothers birth certificate to claim citizenship.

Edited September 4, 2012 by TommoPhysicist

[Eff1n2ret]

No worries. Simply,if you are the British born father of an illegitimate child born prior to July 2006 your child does not automatically qualify for Citizenship.

In the case that they are born before you have to prove paternity and provide other proof as discussed in my post in order to register.

You just apply for a British passport for the kid.

Proof of paternity will be taken as the Thai birth certificate translated into English and a letter of confirmation from the mother.

Nothing to do with the UKBA at all, just the passport office.

(Eff beat me to it)

You are British other

Steady on old chap. The child has to go through the process of obtaining British Citizenship before applying for a passport, and it therefore is very much to do with the Nationality Division of UKBA.

[Eff1n2ret]

There seems to be a little confusion about 'British by descent' and 'British otherwise than by descent.' I quote the following from a UKBA Nationality leaflet:-

BRITISH CITIZENS OTHERWISE THAN BY DESCENT AND BRITISH CITIZENS BY DESCENT

4. Every British citizen is either a British citizen

otherwise than by descent or a British citizen by descent.

This difference is important because the type of citizenship people have determines the way in which they can pass British citizenship on to their children who were born outside the United Kingdom.

Generally speaking a British citizen otherwise than by descent is a British citizen who was born, adopted, naturalised or, in most cases, registered in the United Kingdom or a qualifying territory.

A British citizen by descent could have become such a citizen in a number of ways – for example:

• by birth outside the United Kingdom to a parent who was a British citizen, but was not in the kind of service described in paragraph 11

• by registration (as described in paragraph 13A)

• by registration at the Home Secretary’s discretion (see paragraph 15) if one of the parents was a British citizen when the child was born

So most of us born in Blighty to parents there for generations are British otherwise than by descent, which is the OP's situation.

[TommoPhysicist]

So most of us born in Blighty to parents there for generations are British otherwise than by descent, which is the OP's situation.

Yes I agree, you are right. So the kid won't have a problem.

[bobrussell]

There seems to be a little confusion about 'British by descent' and 'British otherwise than by descent.' I quote the following from a UKBA Nationality leaflet:-

BRITISH CITIZENS OTHERWISE THAN BY DESCENT AND BRITISH CITIZENS BY DESCENT

4. Every British citizen is either a British citizen

otherwise than by descent or a British citizen by descent.

This difference is important because the type of citizenship people have determines the way in which they can pass British citizenship on to their children who were born outside the United Kingdom.

Generally speaking a British citizen otherwise than by descent is a British citizen who was born, adopted, naturalised or, in most cases, registered in the United Kingdom or a qualifying territory.

A British citizen by descent could have become such a citizen in a number of ways – for example:

• by birth outside the United Kingdom to a parent who was a British citizen, but was not in the kind of service described in paragraph 11

• by registration (as described in paragraph 13A)

• by registration at the Home Secretary’s discretion (see paragraph 15) if one of the parents was a British citizen when the child was born

So most of us born in Blighty to parents there for generations are British otherwise than by descent, which is the OP's situation.

There is a lot of confusion!! If the OP was born in the UK to one or both British parents it is the daughter who is British by descent and as such only needs to register and a passport is then a formality.

I was getting bogged down with descent or otherwise and confusing myself!

See:http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nichapter20/chapter20?view=Binary

Perhaps a little more clarification from the OP. Were you born in the UK?

[apiwan]

Registration is first then passport , if you were born in UK then shouldn't be a problem,

On registration , I am now renewing their passports and the eldest has a registration certificate, with the necessary ref numbers

But the other one I'm sure u registered him but have a different form

Will update when I get through this .

So from what you found out has I have sole custody of the kids , I don't need her permission to take them to UK ?

Also if they've got british passports , isn't it as easy as buying a ticket and just going to UK ????

Thanks in advance

[TommoPhysicist]

So from what you found out has I have sole custody of the kids , I don't need her permission to take them to UK ?

Officially you need at least need a copy of her ID card dated and signed with her written permission to take them out of the country. But many people 'get lucky' and manage to board a plane without that.

Edited September 4, 2012 by TommoPhysicist

[Soutpeel]

So from what you found out has I have sole custody of the kids , I don't need her permission to take them to UK ?

Officially you need at least need a copy of her ID card dated and signed with her written permission to take them out of the country. But many people 'get lucky' and manage to board a plane without that.

I disagree, if he has sole custody and is the sole legal guardian he doesnt need his ex-wife's permission to do anything, she has given up this right, he may however need the Thai court paperwork which states this

Edited September 4, 2012 by Soutpeel

[TommoPhysicist]

I disagree, if he has sole custody and is the sole legal guardian he doesnt need his ex-wife's permission to do anything, she has given up this right, he may however need the Thai court paperwork which states this

Disagree all you want, but in Thailand sole custody is not permission to take the child out of the country.

[Paul888]

I disagree, if he has sole custody and is the sole legal guardian he doesnt need his ex-wife's permission to do anything, she has given up this right, he may however need the Thai court paperwork which states this

Disagree all you want, but in Thailand sole custody is not permission to take the child out of the country.

I am pretty sure it is if you have the court papers to prove it.

Just think for a minute what the phrase "sole custody" actually means.......

Some serious mis-information in this thread. I strongly believe that the guy just needs to complete form MN_1. The process is not cheap and can tale up to 6 months but it should achieve the desire objective.

[apiwan]

So from what you found out has I have sole custody of the kids , I don't need her permission to take them to UK ?

Officially you need at least need a copy of her ID card dated and signed with her written permission to take them out of the country. But many people 'get lucky' and manage to board a plane without that.

So sole custody in Los does not mean what we think it means ????-

[7by7]

Perhaps a little more clarification from the OP. Were you born in the UK?

I explained the difference between British by descent and British otherwise than by descent in post 9.

To which the OP replied

(I am British otherwise than by descent - born here to British parents).

I had thought that in order to register his daughter as British the OP wouold need to demonstarte that she had strong ties to the Uk, which from what he has said would be difficult in her case.

However, having read Eff1n2ret's posts (and he knows far more about this than I) I see that I was wrong.

From what the OP has said, it appears that he can apply to register her as British under section 3(1); see Guide MN1, page 11, Registration at the Home Secretary’s discretion - Section 3(1) application.

[Maestro]

No worries. Simply,if you are the British born father of an illegitimate child born prior to July 2006 your child does not automatically qualify for Citizenship.

In the case that they are born before you have to prove paternity and provide other proof as discussed in my post in order to register.

I am a bit confused here and wonder whether you are going about it the wrong way. You want your daughter to immigrate to the UK, as a Thai national, and then apply in the UK for British citizenship. What would stop your daughter from applying for her UK passport in Thailand on the basis of being the child of a British national, ie you? In other words, get her UK passport in Thailand, travel to the UK as a UK national, which means there is no need for a visa, no need for immigration.

Do I have too simplistic a view?

P.S. I see that application for the UK passport would be step 2, which would have to be preceded by registration as a British citizen. Can this registration, and the subsequent passport application, be done in Thailand, at or via the Britsh embassy?

[7by7]

It can be done from Thailand, but no longer via the embassy. From the 16th July 2012 the application has to be sent direct to the UKBA.

Changes to British nationality applications made outside the UK

[jpb23]

First thanks for everyone's responses. It is friendly debates like this bring out the truth for everyone.

Here's an update after taking advice from a few 'experienced' immigration solicitors that kindly listened to my case (no names mentioned).

Solicitor 1: Said that the settlement visa is hopeless as I cannot prove sole responsibility and never will be able to. He advised trying for a passport (which does not make sense as it is specified that to get a passport you have to be British citizen and my daughter is not - hence why I am trying to register!). His second piece of advice is to just get visits using a family visa. This is tricky too due to the suspicion around bringing kids to the UK however if the visa application is successful then the trip is usually unhindered from thereon.

My take on that advice is that it would be pointless to try for a passport if we know that the child does not automatically qualify as a citizen.

At this point I was worried.

Solicitor 2: I have to go for an ILE/R visa and to get the child here and then apply for citizenship from the UK after we get 270 days continuous in the UK under our belts.

Worrying advice on many levels again I thought but I'm no legal expert of course.

Solicitor 3: Said that the ILE/R visa is a hopeless avenue to take due to the 'sole responsibility issue' that we cannot overcome and therefore that stands in the way of meeting the residency committment for the citizneship but they said that it is possible that concessions might have been made on the 2006 clause and that we might just be able to get citizenship directly without worrying about the residency issues meaning that if successful the child can then get a passport and do what she pleases. I was promised a call back...

...in the second call they had checked out the situation and said that registering a child born illegitimately prior to 2006 is not properly covered by UK law and that a successful application is at the 'discretion' of the home office. They said that the application process is a minefield and that due to the fact I have had no contact with the child we'd have to put together an as close to dam_n it water tight case in order to push it through.

This sounds like the best advice so far. I have a consultation booked where we will discuss the process and the documentation needed and from there I can decide whether to push on with an application. This will cost in the region of £1400 including he home office fee.

Any thoughts?

Edited September 4, 2012 by jpb23

[jpb23]

There seems to be a little confusion about 'British by descent' and 'British otherwise than by descent.' I quote the following from a UKBA Nationality leaflet:-

BRITISH CITIZENS OTHERWISE THAN BY DESCENT AND BRITISH CITIZENS BY DESCENT

4. Every British citizen is either a British citizen

otherwise than by descent or a British citizen by descent.

This difference is important because the type of citizenship people have determines the way in which they can pass British citizenship on to their children who were born outside the United Kingdom.

Generally speaking a British citizen otherwise than by descent is a British citizen who was born, adopted, naturalised or, in most cases, registered in the United Kingdom or a qualifying territory.

A British citizen by descent could have become such a citizen in a number of ways – for example:

• by birth outside the United Kingdom to a parent who was a British citizen, but was not in the kind of service described in paragraph 11

• by registration (as described in paragraph 13A)

• by registration at the Home Secretary’s discretion (see paragraph 15) if one of the parents was a British citizen when the child was born

So most of us born in Blighty to parents there for generations are British otherwise than by descent, which is the OP's situation.

There is a lot of confusion!! If the OP was born in the UK to one or both British parents it is the daughter who is British by descent and as such only needs to register and a passport is then a formality.

I was getting bogged down with descent or otherwise and confusing myself!

See:http://www.ukba.home...r20?view=Binary

Perhaps a little more clarification from the OP. Were you born in the UK?

Yes I was born in the UK to British parents.

[Maestro]

...in the second call they had checked out the situation and said that registering a child born illegitimately prior to 2006 is not properly covered by UK law and that a successful application is at the 'discretion' of the home office. They said that the application process is a minefield and that due to the fact I have had no contact with the child we'd have to put together an as close to dam_n it water tight case in order to push it through...

That''s not bad. I have in the meantime read through the Guide MN1 to which 7by7 gave a link and it seems that one of the three solicitors you talked to is aware of section 3(1)

We may normally register the illegitimate minor child, born before 1 July 2006, of a British

citizen father under section 3 (1) if the criteria at a-c. (and, if appropriate, d.) below are all

satisfied:

a. We are satisfied about the paternity of the child; and

b. We have the consent of all those with parental responsibility; and

c. If the child had been born to the father legitimately:

i. the child would have had an automatic claim to British citizenship; or

ii. the child would have had an entitlement to registration under either section

1 (3), section 3 (2) or sections 3 (5); or

iii. we would normally have registered under section 3 (1). And, if appropriate

d. There is no reason to refuse on character grounds

Do you see a problem with satisfying any of the four requirements? If this is really all the UKBA needs for the citizenship registration, it looks like a piece of cake for your daughter and you can forget about all the other documentation you prepared when you thought she needed to apply for a visa.