ILR application through long residency refused

[Fpssantos]

I used Super Priority Service to apply for ILR based on 10 years residency and got my request refused last Monday on the grounds that during the 10 years I was unlawful for 113 days, time spend in between applications.

I submitted three in total and had two returned as invalid. The third one was alright and the leave to remain granted. The HO miscalculated the period that was 80 days instead of 113. During this time (in between applications) my documents were with the Hao most of the time.

I was given the right to appeal but don’t know where to start.

I have been in the UK for 10 and a half years. I am married to a EU citizen (not settled in the UK) and have two daughters born in the UK but not citizens or settled.

Is there any way they could let me stay based on family/ private life?

Thank you in advance for your assistance.

All the best.

[Zerubbabel]

To get better assistance in this forum, you need to share your immigration history and citizenship.

My understanding of the 10-year route is that 10 years of continuous lawful residence are required. If they find only a single day of unlawful residence, this breaks the 10 years. It means the counter is reset and it will start again after that unlawful period.

What's your status at the moment? Do you have any valid residence?

Is your wife/partner pre-settled?

[secret.simon]

If the applications were returned as invalid, for the purposes of immigration law, they simply do not exist.

Therefore, if you had invalid applications, you would been an overstayer until your next grant of leave.

(Page 15)
The period of overstaying is calculated from the latest of the:
• end of the last period of leave to enter or remain granted (including where an in-time application was submitted but the application was considered invalid)
• end of any extension of leave under sections 3C or 3D of the Immigration Act 1971
• the point that a migrant is deemed to have received a written notice of invalidity, in relation to an in-time application for further leave to remain where that application was deemed invalid due to the failure by the applicant to provide biometrics

As you can see, it is important to know why the applications were returned as invalid. So, why were the applications invalid?

I am married to a EU citizen (not settled in the UK) and have two daughters born in the UK but not citizens or settled.

Where does the EU citizen reside?

How long ago did the break in lawful residence occur?

To get better assistance in this forum, you need to share your immigration history and citizenship.

[Fpssantos]

Hello, thank you for the reply.

The first application was invalid because I didn’t fill in mandatory fields, I overlooked them. Three days later after receiving the application as invalid I submitted a fresh one. That second application was also returned as invalid because I didn’t sign it. They were both silly reasons, lack of attention on my side.

My husband, a German citizen, resides mostly in the UK. He works in Germany but commutes back to London every week. He does not have a settled status because he’s work contract is in Germany and that’s where he pays tax. By saying that, I must say that he’s never received public funds or used the NHS. We all have private health insurance (me, my husband and the kids). Our children are also German citizens, born in London.

The break in lawful residence happened in 2011. I am currently under Tier 2 (General) which I have held for the past 5 years, it is valid until June 2020.

Best,
Fernanda

[Zerubbabel]

The first application was invalid because I didn’t fill in mandatory fields, I overlooked them. Three days later after receiving the application as invalid I submitted a fresh one. That second application was also returned as invalid because I didn’t sign it. They were both silly reasons, lack of attention on my side.

In your case, and if it is possible for you, I recommend using a solicitor to fill these applications. I appreciate they are long and complex but errors like that can have a life-changing effect on you. If the break of lawful residence happened in 2011, it means the qualifying residence period started in 2011. You will reach the 10 years in 2021.

My husband, a German citizen, resides mostly in the UK. He works in Germany but commutes back to London every week. He does not have a settled status because he’s work contract is in Germany and that’s where he pays tax.

For immigration purposes, your husband doesn't live in the UK. It's not possible to claim Treaty Right by visiting an EEA country over the weekend. He has to work and pay taxes in the UK. As he works and pays taxes in Germany, he is a German resident. This closes EEA routes for you unfortunately. But similar routes would be open for you in Germany if you are happy to consider this option.

Our children are also German citizens, born in London.

They are probably German only because none of their parents is settled or British at the time of their birth.

How old are the kids? Do you they reside in the UK or come only over the weekend? Do they have any EEA residence in the UK?

[Fpssantos]

Thank you very much for your reply.

Please note that my husband doesn’t only “visit the UK. He flies to Germany every Monday morning and comes back on Wednesday evening. He really is in the UK most of the time. He stays in a hotel when he goes to Germany, his correspondence address is in London. Our house is in London.

I was told that he could declare himself as self sufficient and it would alright to apply for settlement.

My children are 2 years and 7 months.

Thank you

[Fpssantos]

I forgot to mention that the kids reside in the UK. We all reside in the UK. When in Germany working my husband stays in a hotel.

[Zerubbabel]

I am wondering about the following route: applying on EEA routes through your German kids. As they are only German, it will make the EEA equation relatively straightforward. Did you apply for the EU Settlement scheme for them?

[Fpssantos]

No I didn’t. I haven’t done anything in terms of settlement for my kids because, as I was going to apply for my ILR, my plan was to apply for their naturalisation (they were both born in London) after being granted the ILR, which didn’t happen.

As German citizens they can still live in the UK with no restrictions so that’s also why I didn’t bother. I am aware that I’ll have to do it because of Brexit.

Can I apply for the kids’ settlement even though I am not settled? Does my husband have to apply first? Would our applications be linked?

Thank you

[zimba]

The decision to refuse long residence is correct. You also cannot go via the EEA route as your husband works in Germany. You better apply for ILR under Tier 2 route when you had 5 years. Your kids can be registered as British when you get ILR

[Fpssantos]

Thank you for your reply.

I already have Tier 2 for 5 years and should have applied through that in the first place, my (very) expensive mistake.

As I said, I intended to naturalise my children once I got the ILR but it didn’t happen. My question is, they are EU citizens, can I apply for their settlement on the EU Settlement Scheme?

Thank you

[Zerubbabel]

Thank you for your reply.

I already have Tier 2 for 5 years and should have applied through that in the first place, my (very) expensive mistake.

As I said, I intended to naturalise my children once I got the ILR but it didn’t happen. My question is, they are EU citizens, can I apply for their settlement on the EU Settlement Scheme?

Thank you

I don't see why you can't. May be other members have a different opinion.

But you can first apply for your kids. They are EEA so eligible. They will probably get pre-settled.

Then, with their reference you apply yourself as primary career for EEA citizen. Use your husband tax documents to demonstrate that he is out of the country so you are the primary carer:

https://www.gov.uk/settled-status-eu-ci ... ligibility

[zimba]

Thank you for your reply.

I already have Tier 2 for 5 years and should have applied through that in the first place, my (very) expensive mistake.

As I said, I intended to naturalise my children once I got the ILR but it didn’t happen. My question is, they are EU citizens, can I apply for their settlement on the EU Settlement Scheme?

Thank you

Then what is stopping you from getting ILR under Tier 2 now and sorting the kids situation out ?! EEA route may be tricky

[Fpssantos]

MONEY! I saved all I could to use the Premium Service and now, after paying £3,208 I have no money left to submit a fresh application. I am currently on maternity leave not receiving my full salary.

[Fpssantos]

I was naive and misinformed and took the wrong route. Now all I can do is to claim on the grounds of private and family life and hope for the best

[zimba]

I was naive and misinformed and took the wrong route. Now all I can do is to claim on the grounds of private and family life and hope for the best

I suggest against it. Changing your visa route will lead to your ILR being delayer even more. I suggest to stay under Tier 2 as for now and apply under Tier 2 when you got enough funds. Why did you apply for SET(LR) without seeking advice beforehand and understanding the requirements ??

[Fpssantos]

I was naive and misinformed and took the wrong route. Now all I can do is to claim on the grounds of private and family life and hope for the best

I suggest against it. Changing your visa route will lead to your ILR being delayer even more. I suggest to stay under Tier 2 as for now and apply under Tier 2 when you got enough funds. Why did you apply for SET(LR) without seeking advice beforehand and understanding the requirements ??

Because I didn’t remember at all the problem I had in 2011. It was such a long time ago. In my head it was a straight forward process. Lesson learned.

My question now is if I can appeal and still submit a fresh application in the future should this process takes too long.

[aman90]

You’ve not clearly stated ur immigration history timeline..
How long have you been on tier2?
Has ur current visa expired?
You can either appeal OR submit a new application.

[Fpssantos]

You’ve not clearly stated ur immigration history timeline..
How long have you been on tier2?
Has ur current visa expired?
You can either appeal OR submit a new application.

I’ve been on Tier 2 for 5 years.
My current visa expires in June 2020
So if I appeal I cannot submit a fresh application before my current visa expires or chose to take a different route e.g. EU settlement scheme through my husband or my kids?

[aman90]

I’ve been on Tier 2 for 5 years.
My current visa expires in June 2020
So if I appeal I cannot submit a fresh application before my current visa expires or chose to take a different route e.g. EU settlement scheme through my husband or my kids?

No.. it’s either or. If you submit an appeal and then a fresh application ur appeal becomes void. Can have only one thing considered at a time.

Have you completed 60 months on Tier2?

Again you’ve not clearly stated ur 10 year immigration history timeline.. each and every date matters for an appeal. No harm in trying. The rules changed after 2012 to benefit the applicant. Earlier one could apply within 28 days of visa expiry to avoid becoming an overstayer..
I do agree with Zimba.. you have it simple and stress free with Tier2..

[Fpssantos]

I’ll try to post a picture of my immigration history. I’ve had a Tier 2 since June 2014. I’d submit a fresh application now if I had the money.

[Fpssantos]

I didn’t seem to manage to post a picture. Not sure how it works.

[zimba]

Appeal unlikely to succeed as this issue has been settled in the supreme court.
Why waste money on appeal instead of saving to apply for ILR under Tier 2 in few months time ?! Your visa is valid for another 10 months or so

[Fpssantos]

Appeal unlikely to succeed as this issue has been settled in the supreme court.
Why waste money on appeal instead of saving to apply for ILR under Tier 2 in few months time ?! Your visa is valid for another 10 months or so

I’m starting to let go of the idea. It just feels like I’m giving up when I think their decision was unfair and I should try to revert it. I spoke to some people abou it and I’m more confused than before.

I don’t actually have a few more months to go. I have a few weeks. I’m currently on maternity leave and because I’ve spent a lot of time in Germany recently I’ll reach the 180 days away soon.

[Fpssantos]

The EU Settlement Scheme would be cheaper but maybe not straight forward. The Tier 2 route is safer but will cost me a lot of money.

Would I be able to apply leave the country? Do I have to wait for the decision in the UK?

The reason why I went for the priority service first time round was because I wanted to go away to see our family and get help with the kids.

I intend to go to Brazil in a month and was wondering if I could apply and go and re-enter the UK with my current BRP.