ILR route on 10 years but with over stayed status previously

[CR001]

You need to do the test. Apply for AR if you wish to.

[kasi]

The test is already booked for this Sunday and I am sure she will pass the test. shall I apply for new ILR application or shall we request HO to consider the new B1 with the old application? if we request for Administrative Review, will they accept our request? what would you suggest?

[kasi]

Hi All,

I am applying for my wife again for her ILR as she has passed the English Language test from Trinity College and have also Life in the UK test passed couple of years ago. last time her application was rejected because of the English language Institute were taken off from Home Office list.
I was just making sure that she can still apply under 196d immigration rule with providing:
1. Life in the UK Test
2. English Language from Trinity College
3. she is been living in the UK with me from 2007
4. she has children born in the UK who are now British
5. I myself settle and acquired British nationality through workpermit scheme.

anything else do we need?

Thank you for your help in advance.
regards,
Sheraz

[kasi]

Hi All,

I have applied today for my wife ILR under 196D and unfortunately HO has refused the application stating that she has not meet the requirement for 196d(i)(1).
on 5th October we have applied for her ILR and the case worker has refused the application on the basis of her ESOL certificate which is not in HO list anymore. during the conversation I had with him, he clearly said that that is the only reason they have rejected her ILR application and also this is the only reason they have mentioned in the refusal letter. so my wife has done the B1 and today we had inperson appointment and they have stated the reason is as follows:

"In view of the fact that you were last granted leave in the United Kingdom was granted based on your Family and Private life in the United Kingdom it is not accepted that you meet paragraph 196D(i)(1) of Immigration Rules. Your application therefore falls for refusal under Paragraph 196F with reference to Paragraph 196D(i)(1) of the Immigration Rules"

will anyone please guide me that is HO correct here and shall I go for Administrative review?

I need help please. I will be thankful for your support and advice as I have already spent around £5k with no results sofar.

Thanks,
Sheraz

[vinny]

Merged.

[vinny]

The caseworker seemed to have misread the rules.

The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the partner of a person who has or has had leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that the applicant:

(i) is the spouse, civil partner, unmarried or same-sex partner of a person who:
(1) has limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) and who is being granted indefinite leave to remain at the same time; or
(2) is the spouse, civil partner, unmarried or same-sex partner of a person who has indefinite leave to remain in the United Kingdom or has become a British citizen, and who had limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) immediately before being granted indefinite leave to remain; and

196D(i)(1) refers to the sponsor, not the applicant.
Isn't 196D(i)(2) satisfiable?

196D(iv) is applicable to her.

(iv) was not last granted:

(1) entry clearance or leave as a visitor, short-term student or short-term student (child),
(2) temporary admission, or
(3) temporary release; and

[kasi]

Thank you for your reply vinny.

I had a letter from HO in the past confirming that my wife current states comply with the provision of 196d(iv).

196D(i)(1) refers to the sponsor, not the applicant.
Isn't 196D(i)(2) satisfiable?

we have provided the marriege certificate and also my wife is been living withe me since 2007, both of our children have British passport, I got British passport. we provided all that information to the case worker. The point she was making that because my wife current visa is not dependent on my visa so she can't comply with 196d(1)(i).

what shall I do now?

[vinny]

196D(i)(1) doesn't have to be satifiable when 196D(i)(2) is satisfied, because of the 'or' between (1) and (2). I don't think that your wife's current visa has to be dependent on your visa under 196D(i)(2), otherwise 196D(iv) would be redundant. Under 196D(i), it's sufficient that she is the spouse of the person who satisfies 196D(i)(2).

[kasi]

Thank your for your advice vinny. shall I write an administrative review by myself or shall I request any lawyer for help?

[vinny]

It depends on how comfortable you are with each of the two options.

[kasi]

Hi Vinny,

I hope you are well. I would like to thank you for all the help you have provided specially you guidance and pointing me towards 196D immigration rule. Today we have received reply from Home Office saying that our administrative review is successful and my wife has been granted ILR.

Thank you alot for your help and support. you have saved us alot of years of wait. words cannot express my gratitude to you and your team who are doing this wonderful work in this time.

last question is that is my wife can apply for Natruliazation straight away as she don't have to wait for one year to make this application right?

Thanks you once again.

Best Wishes,
Sheraz

[vinny]

Congratulations!

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.

As you are British, she may naturalise as a spouse of a British citizen, subject to all the requirements. There is no requirement for her to hold ILR for a minimum of one year.

However, her overstaying is a problem. She should also not have overstayed for over 28 consecutive days within the preceding 10 years.

[kasi]

she has children who are British national and I myself holds British passport. however, as in the past when she applied for ILR in June, she submitted application after two days of her visa expires but using old forms which were not excepted by the HO and return after 21 days. She applied again using the correct forms but then her visa was refused because she overstayed over 28days. after that we file JR and than finally she got private life visa in 2016 and now ILR.

does she qualify for Naturalization now?

[vinny]

Unfortunately, as said, it may be difficult because of her previous overstay.

[kasi]

are there cases in which due to overstayed previously Citizenship has been rejected even after ILR? and what are the chances to succeed?

[CR001]

are there cases in which due to overstayed previously Citizenship has been rejected even after ILR? and what are the chances to succeed?

Yes, many when migrants fail the good character requirement. Citizenship LAWS are separate and different to immigration (ILR) RULES.

[kasi]

so what would you suggest? in the past she applied for ILR in time but used an incorrect forms and due to the delay from HO returning the forms, she overstayed visa. Also, her mother passed away in that time due to which all the situation got worse.

is there a possibility that if we make a case and argue that what happened was a human error rather then deliberately overstaying the visa, it could be acceptable by the HO?

[CR001]

For citizenship, she needs to meet all the requirements, which are prescribed in law.

Have you clicked on and read the links that vinny has provided?

[kasi]

the 10 year they are asking will be considered from the day of arrival in the UK or from when the breach happened or when they issued ILR?
also, what are the chances of succeeding the application if we put a reasonable explanation regarding good character?
as my wife have been volunteering herself to local school and play groups in the past, will that be considered at all?