Breach of immigration rules and citizenship

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Breach of immigration rules and citizenship

Postby William Blake » Fri Nov 26, 2010 10:08 pm

In the naturalisation booklet AN - the requirements it states

"You should not have been in breach of immigration law during the residential qualifying period. You should have been here legally. In other words, you must have had the necessary permission under the immigration laws to be in the UK. You may be refused if
you have been in breach of immigration laws during the residential qualifying period."


-My 2007 10 yr long residence application for indefinte leave to remain was refused in 2008. And my then visa lapsed before receiving the refusal notification. I was in the UK as an overstayer while I prepared and then submitted my request for a reconsideration of my refused ILR application. The refusal was upheld.

-I left under the overstayer concession in 2008 and returned on a work permit.

-Then in 2009 my second request for a reconsideration of my refused 2007 application resulted in me receiving indefinite leave to remain.

I understand that with ILR obtained under long residence one could apply 12 months later for British citizenship.

So my question is, considering that the original refused ILR application was eventually approved will the time as an overstayer bar me from receiving British citizenship ?

Is it simply regarded as a breach of the rules or is it the case that the fact that I got the approval in the end means the period of overstaying would not adversely affect me ?
Every night and every morn
Some to misery are born.
Every morn and every night
Some are born to sweet delight.
Some are born to sweet delight,
Some are born to endless night
William Blake
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Posts: 333
Joined: Thu Jun 07, 2007 8:55 pm

Postby William Blake » Mon Nov 29, 2010 11:50 pm

What I am asking is whether the period of overstaying causedby the refusal would hinder me from getting citizenship.
Every night and every morn
Some to misery are born.
Every morn and every night
Some are born to sweet delight.
Some are born to sweet delight,
Some are born to endless night
William Blake
Member of Standing
 
Posts: 333
Joined: Thu Jun 07, 2007 8:55 pm

Postby sushdmehta » Tue Nov 30, 2010 4:12 am

Case history

Assuming that you did overstay (in 2008) beyond 28 days of either receiving notification of the settlement refusal or (if you were given the right to appeal) the last day that you could submit an appeal, then you were in breach of immigration rules during a period which (until Oct-2013) falls within the qualifying residential period for naturalisation (i.e. - 5 years preceding the application). Therefore, IMHO, the requirement - "not been in breach of the Immigration Rules at any stage during the five-year period" - is not satisfied. In such case, you may be eligible for naturalisation on /after 18-Oct-13 only.

UKBA can argue that a request for reconsideration / review can be made from outside the UK so you could have either:
1. left UK and submitted the request from outside, or
2. made the request and left before becoming an overstayer.
Unless UKBA admits that you were forced to become an overstayer because of their fault, I don't think your naturalisation application will be approved before Oct-2013.


Consider seeking professional legal advice on the matter.



regards
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Postby William Blake » Fri Dec 03, 2010 12:23 am

Thanks.

If it is refused are appeals given in naturalisation applications ? If not could I judicial review the refusal ?
Every night and every morn
Some to misery are born.
Every morn and every night
Some are born to sweet delight.
Some are born to sweet delight,
Some are born to endless night
William Blake
Member of Standing
 
Posts: 333
Joined: Thu Jun 07, 2007 8:55 pm

Postby sushdmehta » Fri Dec 03, 2010 12:39 am

There is no right of appeal for naturalisation refusals but a judicial review may be possible depending on the reason(s) given /merit of the case.


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Postby William Blake » Fri Dec 03, 2010 9:44 pm

That's helpful. In your opinion does the fact that they overturned the initial refusal show that it wasn't the right decision and hence their error? I mean this regard to you saying unless they admit it was their error.

They claimed I had two late applications - but they were not late; date of posting the application is what counts and regarding the other section 3c leave was in effect.


They claimed I had a gap but I presented legal arguments that showed 'the gap' should not be considered in my case.


I appreciate that I will need to get legal advice but to your knowledge is this sounding like what you would classify as 'their fault' leading to me overstaying. Also my re-entry in the country was under the overstayer concession. So having been given a legal exemption for overstaying then can they use that against me now ?
Every night and every morn
Some to misery are born.
Every morn and every night
Some are born to sweet delight.
Some are born to sweet delight,
Some are born to endless night
William Blake
Member of Standing
 
Posts: 333
Joined: Thu Jun 07, 2007 8:55 pm

Postby William Blake » Sat Dec 18, 2010 4:50 pm

Guys I still need some more help.

Does the fact that they overturned the initial refusal show that it is their fault? Is there any case law that you could point me to that says the Home Office is duty bound to grant me citizenship if the overstaying was their fault or something to that effect ?
Every night and every morn
Some to misery are born.
Every morn and every night
Some are born to sweet delight.
Some are born to sweet delight,
Some are born to endless night
William Blake
Member of Standing
 
Posts: 333
Joined: Thu Jun 07, 2007 8:55 pm

Postby sushdmehta » Sat Dec 18, 2010 6:05 pm

The issue at hand: One of the standard requirements for naturalisation - "not been in breach of the Immigration Rules at any stage during the five-year period".

You overstaying in the UK is not UKBA's fault, which they may easily argue / claim (as mentioned in response above). You didn't need to be present in the UK in breach of immigration rules to "coordinate" with UKBA on a reconsideration request. You could have done it from anywhere in the world.

Their fault may be restricted to the fact that they did not make the right decision on your settlement application in the first instance - a fault that was rectified subsequently. But what does this have to do with you overstaying in the UK knowingly?


IMHO ....



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sushdmehta
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Posts: 21747
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Postby William Blake » Tue Dec 21, 2010 11:34 pm

I don't deny your point. I do want to hear what you think as I will be better able to gauge what I am up against.

Regarding overstaying; when I got the refusal notice I was already an overstayer as the notice arrived after my visa had expired though it was dated before leave expired. I actually received the refusal notice a month - 29 days - after it was dated as it went to the wrong address initially.

Also I left under the overstayer concession which basically said the overstaying would not be used against me in future entry clearance applications. Don't you think for BIA to try and use it against me now would be 'wrong' ?
Every night and every morn
Some to misery are born.
Every morn and every night
Some are born to sweet delight.
Some are born to sweet delight,
Some are born to endless night
William Blake
Member of Standing
 
Posts: 333
Joined: Thu Jun 07, 2007 8:55 pm


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