John and Mary (both South Africans) are in the UK with limited leave to remain; John under the ancestral route (his grandmother was born in Scotland) and Mary as his dependant partner. They are not yet settled (do not have ILR).
Their son Charlie was born two weeks ago here in the UK. As his parents are not British or settled, he isn’t a British citizen at birth.
Clearly, he will have a British birth certificate and will be able to apply for a South African passport, but what is his UK immigration status?
Under para 305 (Part 8 UK Immigration Rules) baby Charlie’s position could be ‘regularised’ (see next paragraph) if it is shown that:
• he will remain in the UK with John and/or Mary;
• on the date of his application he is still under the age of 18;
(If he applies now, this shouldn’t be too difficult for x 2 weeks old Charlie!)
• he was born in the United Kingdom (we know he was); and
• is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
• (where an application is made for leave to enter) Charlie has not been away from the United Kingdom for more than 2 years.
If he applies, Charlie is likely to receive leave in line with the parent who has the longest leave period. If indefinite, his leave will also be indefinite.
However, it is important to note in terms of Chapter 8, Section 4A Immigration Directorates’ Instructions Charlie is not unlawfully in the UK. Moreover, he is NOT REQUIRED to apply for leave to remain. In time, he may very well be able to apply for registration as a British citizen (British Nationality Act 1981). Charlie’s future prospects for British citizenship will be discussed in our next delivery.
For more information and assistance contact info@depner-immigration.com
Daniel Dippenaar – Barrister-Immigration Consultant 12 March 2020