If you have overstayed in the UK, regularizing your stay without having to go back to your Home country and re-applying to come back can be difficult and almost impossible—except under certain limited circumstances.
In the last few years, many foreign nationals including those who have overstayed in the UK or even entered the UK illegally by virtue of having become parents in the UK have been granted limited leave to remain in the UK (2.5 years renewable stay).
While this has somewhat become a popular route to regularizing stay in the United Kingdom as a result of its strong human rights (Article 8 of ECHR) backing, certain requirements are expected to be met per the Immigration rules for applications under the ‘Parent of a British Child or Parent of a Child Settled in the UK’ to be successful.
Who Qualifies to Make This Application?
Unlike the United States of America, the UK does not grant automatic citizenship to children born within its jurisdiction. Therefore, a child born in the UK to a large extent inherits the ‘immigration status’ of his or her parents.
As a result of the above, if you are an overstayer in the UK or an illegal immigrant and you give birth in the UK, the child would normally inherit your status or the other parent’s status. This means if the other parent of your child is British or has settled status in the UK, then per Section 1 (1) of the British Nationality Act 1981, the child automatically becomes British.
Now if you are an overstayer or an illegal immigrant and your child is British on the back of the fact that his or her other parent is a British national or holds a settled status in the UK, you can make an application to the Home Office as a Parent (and even Step-parent) of a British Child to regularize your stay.
If your application is successful, you would be granted 2.5 years leave to remain, under the 10-year route.
Requirements a Parent (Including Step-Parent) of a British Child or a Child Settled in the UK Have to Meet
The legal basis for this application is contained in Appendix FM of the immigration rules which requires, inter alia, that:
- the applicant and the child must be in the UK;
- the applicant must have made a valid application for limited leave to remain as a parent
And that the applicant must have a genuine and subsisting parental relationship with a child who-
- is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
- is in the UK;
- is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
- taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.
Also, the applicant must provide evidence that he or she has:
- parental responsibility for the child; or access rights to the child; and
- The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.
Success of a Parent of a British Child or a Child Settled in the UK Applications
From experience, the popularity of this application is due to the fact that applicants are not required to have valid leave to remain or visas before making an application—and also because a lot of foreign nationals are starting families in the UK irrespective of their immigration status.
However, an application which is rooted in both the Immigration Rules and Article 8 (Human Rights) is never a straightforward one. A lot of applications made under this route get refused or rejected because a lot of applicants do not put forward good representation or submit poor evidence-based applications that miss out the requirements stated in Appendix FM.
Unless a fee waiver application is successful, an applicant must currently pay £1033 as application fees to the Home Office plus an additional £500 for Immigration Health Surcharge (IHS).
It’s true that if you are an overstayer or an illegal immigrant in the UK with a Child (British or Settled Child), you would be able to regularize your stay as a parent (including step-parent) of such a child provided you meet the requirements of the Immigration rules.
While individuals can make this an application themselves, a proper legal representation or help from a specialized Immigration Law Firm or person is priceless—as that increases your chance of success.
If you wish to regularize your stay in the UK or require UK Immigration advice or assistance on the above or any other matter, contact us at Adukus Solicitors on +447837576037 (Direct and Whatsapp) or +442071831479.
Alternatively, E-mail: [email protected]
Adukus Solicitors is a law firm based in London specializing in Immigration & Nationality Law, Criminal Law (including Police Station and Court Representation), Housing Law, Family Law, Prison Law, and Personal Injury.
The firm is authorized and regulated by the Solicitors Regulation Authority.