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Children Born in the UK to Illegal Immigrants

A child is usually automatically registered as a British citizen if they are born in the UK to a British citizen or a settled person. Unfortunately, this is not the case for those born in the UK to illegal or undocumented immigrants. Children born in the UK to parents without legal status may be able to secure the right to remain by applying for limited leave to remain, indefinite leave to remain (ILR), or UK citizenship.

The options available to a child who was born in the UK to illegal immigrants will depend on their circumstances, including how long they have lived here and when they were born. Due to the range of options available, it is important to seek the guidance of an immigration solicitor who can recommend the best way forward.

In this article, we answer the question, “can a child stay in the UK indefinitely if they are born here to illegal immigrants?” In particular, we will discuss some of the ways that children born in the UK to illegal immigrants, and the parents of those children, can secure their legal immigration status here.

Child under 18 years old with 10 years of continuous residence

A child born in the UK to illegal immigrants may be able to apply for British citizenship if they have lived here since birth until the age of 10 (this applies to children born on or after 1st July 2006)1. They may also be automatically a British citizen if one of their parents has become a British citizen or received permission to remain indefinitely since their birth.

A person can register to become a British citizen if neither of their parents was British citizens or settled in the UK when they were born as long as they have not spent more than 90 days outside the UK in each of the first 10 years of their life. If they have spent more than 90 days outside the UK in any of the 10 years, they must explain if there are special reasons to justify this. In this case, it is especially important to seek the assistance of an immigration Solicitor who can explain the special reasons in accordance with the UK immigration rules.

Child under 18 years old with 7 years of continuous residence

Under the new 7 years child immigration rules introduced on 20th June 2022 (Appendix Private Life)2, a child born in the UK can apply for ILR immediately after living in the UK for 7 years. This allows children born in the UK to gain settlement faster than the standard 10 years long residence rules that apply to children. To make a successful application under the ‘Private Life’ route, the following criteria, applicants must:

  • Be present in the UK
  • Be under 18 years old
  • Have lived in the UK continuously since their birth
  • Have lived in the UK for at least 7 years immediately prior to applying for ILR
  • Demonstrate that it would be unreasonable to expect them to leave the UK
  • Meet the continuous residence requirements (i.e., not been outside the UK for 6 months or more in any year)
  • If aged between 18 and 64 years:
    • Pass the Life in the UK test
    • Meet the English language requirements – i.e., hold an English language qualification at level CEFR level B1 in speaking and listening. Alternatively, applicants may meet this requirement if they have a degree taught or researched in English.

The Home Office must be satisfied that the applicant is suitable to be granted settlement – i.e., they do not pose to threat to the UK on the ground of criminality or for other reasons.

Applying on the basis of private life (family visa scheme)

Under the UK’s family migration route, it may be possible to apply to remain in the UK on the basis of having established a ‘Private Life’ here. A person can apply through the private life visa route if they:

  • Are currently present in the UK
  • Are under 18, have resided here 7 or more continuous years, and it can be shown that it would be unreasonable for them to leave the UK
  • Are between 18 and 24 and have resided continuously here for more than half of their life
  • Are 18 or over, have lived here for under 20 years living and can show they would have significant problems living in the country they would need to live in
  • Have been in the UK continuously for 20 years

If the above criteria cannot be met, it may still be possible to apply for leave to remain on the basis of Article 8 of the European Convention on Human Rights outside of the immigration rules. To do so, it would be necessary to demonstrate that being required to leave the UK would be a “disproportionate” breach of the right to a family/private life in the UK.

Successful applicants under the family private life route can stay in the UK for:

  • 30 months and this can be further extended for another 30 months, or
  • 5 years if under the age of 18 and have lived in the UK continuously for at least 7 years or aged between 18 and 24 and have spent half of their life in the UK.

After 5 years of continuous residence, it is then possible to settle in the UK.

Parent visa (family visa scheme)

Once a child has successfully obtained British citizenship or settled status, it may be possible for the parent who is an illegal immigrant to apply for a parent visa under the family visa route. To qualify for a parent visa, the child must:

  • Be under the age of 18
  • A British or Irish citizen or has settled in the UK
  • Have lived in the UK for 7 or more years continuously, and it must not be reasonable to expect them to leave the UK.

In addition, it must be shown that the applicant:

  • Has sole or shared parental responsibility for their child.
  • Meets the English language requirement (to CEFR level A1), and
  • Can financially support themselves while in the UK

Parent visa holders can stay for an initial period of 33 months and then further extend their stay for 30 months. After 5 years of continuous residence in the UK, it is possible to apply for permanent settlement (ILR).

For assistance with gaining leave to remain as a child born to illegal immigrants, please speak to our immigration lawyers for a free telephone consultation on 020 3744 2797 or by email at info@reissedwards.co.uk.

References

1 GOV.UK: If you lived in the UK until you were 10

2 GOV.UK: Private life appendix

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