Naturalization, breach of immigration - query

[petermiler]

Hello dear friends

I wonder if you guys can advice me on a dilemma I find my self in.

I am a Danish national, My spouse is non EU of Thai nationality, we were living in UK for past 7 years. she had EEA2 for 5years.

On expiry of EE2 to get permanent residence my wife managed to apply ILR on basis of marriage to a British national, which she was refused as I am a Danish national. On refusal they kept her passport and said that to return to her country and she was declared illegal immigrant as during the application her leave to remain had expired, After much hassle we applied EEA4 which was granted to her.

As now Britain is trying to leave EU, we thought of applying a British passport for my wife. Now when we went to our local council for the passport document checking service, so that we can keep the passport and the council has seen our passport. The council lady checking the documents called the home office and they said that my wife had breach of immigration and her application will be rejected. And so we came back without filing for naturalization.

Please can anyone provide any of there expertise or experience on this matter. All the time she was married to me during we done the wrong application. And exercising treaty rights, I have read residence requirements for naturalization, there is a clause where it says EU nationals spouses are exempt from leave to remain/immigration.

Can we still apply for a British Passport for my wife, all there was it is really was a technicality, she has been married 6 years to me, can we explain this to the home office.

Much appreciate your suggestions.

[CR001]

She needs to apply for PR (permanent residence) under the EEA Regulations. EEA4 is the form.

ILR is based on the UK Immigration rules which she is not under. She is not illegal, her status is solely dependent on you being in the UK and exercising treaty rights.

[noajthan]

Hello dear friends

I wonder if you guys can advice me on a dilemma I find my self in.

I am a Danish national, My spouse is non EU of Thai nationality, we were living in UK for past 7 years. she had EEA2 for 5years.

On expiry of EE2 to get permanent residence my wife managed to apply ILR on basis of marriage to a British national, which she was refused as I am a Danish national. On refusal they kept her passport and said that to return to her country and she was declared illegal immigrant as during the application her leave to remain had expired, After much hassle we applied EEA4 which was granted to her.

As now Britain is trying to leave EU, we thought of applying a British passport for my wife. Now when we went to our local council for the passport document checking service, so that we can keep the passport and the council has seen our passport. The council lady checking the documents called the home office and they said that my wife had breach of immigration and her application will be rejected. And so we came back without filing for naturalization.

Please can anyone provide any of there expertise or experience on this matter. All the time she was married to me during we done the wrong application. And exercising treaty rights, I have read residence requirements for naturalization, there is a clause where it says EU nationals spouses are exempt from leave to remain/immigration.

Can we still apply for a British Passport for my wife, all there was it is really was a technicality, she has been married 6 years to me, can we explain this to the home office.

Much appreciate your suggestions.

How strange and most unfortunate.

This is hopefully explainable, but will take time...

Note: you can't shoot for passports directly.
First comes naturalisation.
British passports are then obtained by separate (later) application.

There is now a requirement that applicants for the privilege of citizenship (who are dependent family members of EEA nationals or EEA nationals themselves) need to submit a confirmation of PR card.
This is a mandatory prerequisite for naturalisation.

So its good that your wife has a PR card. (I think you said she does)

In fact if you have ambitions for citizenship you will need a PR card too - so you could think about applying for your PR (confirmation) too.

As you have a PR card for your wife it should be clear she is on EU route when it comes to applying to naturalise.
The unfortunate ILR mistake can then (hopefully) be explained by a cogent covering letter with the application.
(The HO helpline operative that NCS called up clearly didn't understand this).

If HO do play hardball and claim 'breach of UK immigration rules' your wife faces a 10-year ban;
there is no right of appeal on a refusal.
But that would be very silly of them.

Clearly you will need to make a robust case & explain you/she really were on EU route (not UK immigration route) all along.
Do you have explanatory documents/letters dating from the time & resolution of the ILR mistake?

When did your wife acquire PR?
And when was EEA4/PR card issued?

She will have to have had PR for 12 months before applying to naturalise.
(That may not be the same as the time of possessing the PR card)

And be able to prove she was physically present in UK 5 years (to the day) prior to date of her application.

Good luck.

[vinny]

Making a wrong application does not make her illegal. It was just a waste of money. Her rights is automatically derived from your status.

[petermiler]

Thank you for your replies


@noajthan below is some more information as you have asked.
1 we appeared infront of immigration judge when the ILR wrong application was refused and explained wrong application which the judge agreed to and removed the removal order. We have that judgement on paper.
2. My wife has had PR for 2 years, she does have six years required for naturalisation.

When we write the explanation what should we include, do we have to point out relevant laws, or keep it general about what happened?

In case of refusal if they say breach of immigration, i know we have no appeal, Can this be taken to any other court in the world?