ILR route on 10 years but with over stayed status previously

[kasi]

Hi All,
I applied for my wife ILR on 26th 2014 June as her visa expired on 25th June 2014. I used the same forms which I used on 21st June and got ILR same day but due to her life in UK test was not completed, I had sent her forms later. However, the problem was that the forms which was used just got expired two days ago and was not remain valid anymore. so Home Office returned the forms on Friday 25th July 2014 saying that it's wrong forms although they took the money out on 30th. I then resubmitted the forms on Monday 28th July and in December HO refused due to overstaying her visa. although, our children are born here, and she is been living with me since from 2007 on spouse visa. we have been given no right to appeal so then submitted JR but it was also refused as HO suggested to go for private life 10 year route which we applied and got it. I am not switching from her 10 year route to spouse visa 5 years but it will be 10 years for her to be in the UK in 2017 so I was thinking that can she applied ILR on 2017 based on her 10 years route. She overstayed her visa for only two days and it was a mistake on my part as I submitter old forms. now I have acquired British Nationality, both our children are born here and the mother hasn't got ILR. what advise you will give us, will be highly appreciated.
Thanks,
Sheraz

[CR001]

Because JR failed, she had no legal status from June 2014 until she was granted visa on private life 10 year route but you don't say when she got this visa. This would be a break in her 10 years continuous residence as the requirement is to have valid leave for the whole 10 years.

[kasi]

during the JR, she has been given a temporary admission, will that be consider a valid stay during the 10 years continues period for ILR?

[kasi]

Hi All,
I applied for my wife ILR on 26th 2014 June as her visa expired on 25th June 2014. I used the same forms which I used on 21st June and got ILR same day but due to her life in UK test was not completed, I had sent her forms later. However, the problem was that the forms which was used just got expired two days ago and was not remain valid anymore. so Home Office returned the forms on Friday 25th July 2014 saying that it's wrong forms although they took the money out on 30th. I then resubmitted the forms on Monday 28th July and in December HO refused due to overstaying her visa for two days. although, our children are born here, and she is been living with me since from 2007 on spouse visa. we have been given no right to appeal so then submitted JR but it was also refused as HO suggested to go for private life 10 year route which we applied and got it on 18-2-2016. Also, during her stay prior to the current visa, she has been given temporary admission by the Home Office. I am not switching from her 10 year route to spouse visa 5 years but it will be 10 years for her to be in the UK in 2017 so I was thinking that can she applied ILR on 2017 based on her 10 years route. She overstayed her visa for only two days and it was a mistake on my part as I submitter old forms. now I have acquired British Nationality, both our children are born here and the mother hasn't got ILR. what advise you will give us, will be highly appreciated.
Thanks,
Sheraz

[CR001]

Please don't start new topics with the same question when you already have a topic. I have merged your two topics.

See Multiple Posts (click)

[vinny]

Did she use the old form within 21 days of its expiry?

Where an application or claim is made no more than 21 days after the date on which a form is specified under the immigration rules and on a form that was permitted for such application or claim immediately prior to the date of such specification, the application or claim shall be deemed to have been made on the specified form.

[kasi]

yes that's correct. the forms which I used for her application got expired on 23rd or 24th June 2014 and I have made application on 26th June 2014. Also, her mother passed away less then a month ago and she was going through a very difficult time. All of this was explained to HO but they didn't show any compassion towards her application and applied rules very stickily. now the question is that can she applied for ILR next year in August 2017 as it will be 10 years since she is been living with me in this country and she is mother of two British children.
any advice is highly appreciated.

Many Thanks,
Sheraz

[vinny]

Then there should have been no problem using the old form under 34I. Did the fees remain the same? If the correct fees were paid, then they should not have rejected the old form.

[kasi]

I submitted form on 26th June 2014 and they took the money on 30th June. The form which was used expired after 21 days for only two days ago but they still return the form and didn't accepted our application. This has caused us lot of problem and what shall we do now? how can we challenge this decision as we have submitted JR but the JR was refused as well. The fees remains the same. please give us any advice that what next step should we take?

[vinny]

What grounds did you put for the JR?
Why was it refused?

[vinny]

Just checked the SET(M)/SET(O) forms. New versions came out on 2nd June 2014. So, if you used the previous version after 23 June, then I'm afraid it was beyond the permitted 21 days.

Did they not mention a new version of the form when you had successfully applied on 21 June?

[kasi]

no they didn't mentioned anything. I got ILR using the same set of forms on 21st June 2014. my question is that is there anyway that we can get this decision reverse?

[Casa]

no they didn't mentioned anything. I got ILR using the same set of forms on 21st June 2014. my question is that is there anyway that we can get this decision reverse?

That's because the 21st June was within the 21 day limit. Your wife's application wasn't.

[vinny]

It's difficult to reverse this, as her JR failed.

However, if you had been granted ILR as a non-PBS work permit holder under Part 5 and she has not overstayed for longer than 28 days currently, then she may apply for SET(O) under 196D, 196E now.

[kasi]

does it mean that now if she gets spouse visa, she has to wait for 5 years to apply for ILR. Although, she is been living in with me since 2007?

[vinny]

What is her status now? Has her leave expired?
Were you granted ILR as a non-PBS work permit holder?

[kasi]

I have acquired ILR on 21st June 2014 based on 5 years work-permit holder route. she got private and family life visa on 18-02-2016. I have got now British passport along with our children who are born in the UK.

[vinny]

When does her leave expire?
You never switched to PBS, Tier 2, etc., right?

[kasi]

no, I never switched to PBS or Tier 2 etc. her leave will expire on 18-08-2018.

[vinny]

Then I think she may apply for SET(O) now!

[kasi]

are you sure? but on what grounds? what if they object that she has overstayed her visa previously and hasn't been granted her ILR visa previously? if you could tell me a bit more detail then I'll be really grateful.

[vinny]

Click on my previous links for more info. Her previous overstay shouldn't matter.

[vinny]

The only potential problem I see is that I am interpreting

(v)must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

to mean that she must not currently be in the UK in breach of immigration laws.

A different interpretation may consider all her time she was in the UK.

[kasi]

from 25-06-2014 till 17-02-16, she was on Temporary admission and the 28 days over stayed was due to the fact that we applied the application on 26-06-14 but then we received forms back on 25-07-14 and she applied again using correct forms on 27-07-14 but 28 days passed during this process.

[vinny]

There is no minimum continuous lawful leave requirement in 196D as there is in 276A. So I suspect that 196D(v) may refer only to her present status.

If she had previously overstayed for longer than 28 days, then it may all depend on how a caseworker interprets 196D(v) to be relevant to her previous overstay or not?