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Refused British Citizenship on the basis of Over stay.
Posted: Wed Jun 29, 2016 11:52 am
by w55
Hi,
My wife had applied for naturalisation, as a spouse of british citizen. She arrived in June 2011 as a Tier 1 dependent. We applied 2 tier 1 extensions , One in Sept 2011, which was approved and the other in August 2013 which was rejected, however we appealed against the decision in the court and HO withdrew the decision in the court in April 2014, We made a PEO appointment for Tier 1 dependednt extention in May 2014, and she was under 3C leave during that time, as home office was in process of reviewing the decision. We made a fresh on the day withdrawing the original application on the same day, and the application was granted. We then applied for ILR in Dec 2014 same day appointment which was granted, In Mar 2016 she made an application for Naturalisation and met all the rules of stay, good character and ILR. However HO refused the application wrongly stating that she has breached the immigration condition of stay by over staying between April 2014 and May 2014, when the appealant withdrew the application, We never withdrew the application in the court and it was the HO which witdrew the application and we have the court document to proove that it was the HO which withdrew the decision. My wife was not an overstayer, as she was under section 3c leave when the decison was withdrawn until we made another application, We strongly believe that HO has made a mistake here. , We have consulted immigration lawyers and barristers in this case and they have recommended to fill the NR , and give HO a deadline to reconsider following a pre action protocol, before doing the judicial review, What do you suggest are our options and what is your recommendation in our case?
Re: Refused British Citizenship on the basis of Over stay.
Posted: Wed Jun 29, 2016 12:11 pm
by secret.simon
Section 3C leaves extends through all the stages of administrative review (including FTT and UTT, but not the law courts), but ,to the best of my knowledge, does not extend to period of judicial review (typically High Court and above), unless the judge gives an order that the person's leave was intact all along.
So, ironically, if the HO withdrew their case, the judge likely did not make an order and hence it is quite likely that the wife was illegally in the UK between the end of the administrative review (upto UTT) and the successful application.
So,what were the courts that you had appealed to and what were the periods involved?
Re: Refused British Citizenship on the basis of Over stay.
Posted: Wed Jun 29, 2016 12:43 pm
by w55
Hi
The appeal was made through the First tribunal, which was the option available after the tier 1 extention applications were refused, We also had applied for reconsideration , but didnt recieve a reply from the HO.
I think you are wrong here with the statement related to JR:
Please refer to the following document:
https://www.gov.uk/government/uploads/s ... ve-6_0.pdf
Quote:
"Withdrawn decisions"
Where a decision is withdrawn by the Secretary of State and the person has section 3C leave because of a pending appeal or administrative review, their section 3C leave will continue but will revert to leave under section 3C (2)(a) instead of section 3C(2)(b) as a decision on the original application will be outstanding.
Where the decision is withdrawn after section 3C leave has come to an end withdrawal of the decision does not mean that the person once again has section 3C leave. This is because section 3C leave can arise and exist only where it is a seamless continuation of leave, either extant leave or section 3C leave. Where there is a break in that leave, such that section 3C leave has come to an end, section 3C leave cannot be resurrected. "
So technically she was still holding a valid 3C, as per the policy 3C leave will continue but will revert to leave under section 3C (2)(a) instead of section 3C(2)(b) as a decision on the original application will be outstanding.
There is no indication here that 3C has expired.
Re: Refused British Citizenship on the basis of Over stay.
Posted: Wed Jun 29, 2016 2:14 pm
by w55
w55 wrote:Hi,
My wife had applied for naturalisation, as a spouse of british citizen. She arrived in June 2011 as a Tier 1 dependent. We applied 2 tier 1 extensions , One in Sept 2011, which was approved and the other in August 2013 which was rejected, however we appealed against the decision in the court and HO withdrew the decision in the court in April 2014, We made a PEO appointment for Tier 1 dependednt extention in May 2014, and she was under 3C leave during that time, as home office was in process of reviewing the decision. We made a fresh on the day withdrawing the original application on the same day, and the application was granted. We then applied for ILR in Dec 2014 same day appointment which was granted, In Mar 2016 she made an application for Naturalisation and met all the rules of stay, good character and ILR. However HO refused the application wrongly stating that she has breached the immigration condition of stay by over staying between April 2014 and May 2014, when the appealant withdrew the application, We never withdrew the application in the court and it was the HO which withrew the decision and we have the court document to proove that it was the HO which withdrew the decision. My wife was not an overstayer, as she was under section 3c leave when the decison was withdrawn until we made another application, We strongly believe that HO has made a mistake here. , We have consulted immigration lawyers and barristers in this case and they have recommended to fill the NR , and give HO a deadline to reconsider following a pre action protocol, before doing the judicial review, What do you suggest are our options and what is your recommendation in our case?
Refused Naturalisation
Posted: Thu Aug 25, 2016 9:46 am
by w55
HO Made an error in judgement , by not considering all the material facts, They reject the application on the basis of the judgement. We apply for reconsideration and wait for 8 weeks. We then applied for Pre action protocol and received a reply from the HO that the reconsideration request is pending and will process the decision as soon as the reconsideration request is reviewed. They also told in the reply that they will do this as soon as possible. The question we have is , if we go for the Judical review, will the court consider our case in the light of the evidence or will they simply reject the case on the basis that a reconsideration application is already pending . What do you suggest and think we should do , also what do you think will be the outcome of JR?
Re: Refused Naturalisation
Posted: Thu Aug 25, 2016 10:08 am
by secret.simon
You are going to have to provide some more facts before we can advise you.
What is the error in judgment? What facts are you disputing with the Home Office?
Re: Refused British Citizenship on the basis of Over stay.
Posted: Thu Aug 25, 2016 10:12 am
by vinny
Re: Refused British Citizenship on the basis of Over stay.
Posted: Fri Sep 23, 2016 1:15 pm
by w55
Hi All,
The reconsideration has been accepted , The HO corrected the mistake and granted the citizenship.
Re: Refused British Citizenship on the basis of Over stay.
Posted: Fri Sep 23, 2016 3:52 pm
by Route to ILR
w55 wrote:Hi All,
The reconsideration has been accepted , The HO corrected the mistake and granted the citizenship.
Well done w55. We r all know HO made a mistake.
Secret simon what is your stance on this now? Eagerly waiting for your reply. As u and other gurus keep saying people that u r illegal once u withdrew your appeal.
Re: Refused British Citizenship on the basis of Over stay.
Posted: Fri Sep 23, 2016 3:55 pm
by CR001
Route to ILR wrote:w55 wrote:Secret simon what is your stance on this now? Eagerly waiting for your reply. As u and other gurus keep saying people that u r illegal once u withdrew your appeal.
If you read the thread, the OP did not withdraw the appeal, HO did. There is a difference. In most refusals, HO has not made an error.
Re: Refused British Citizenship on the basis of Over stay.
Posted: Fri Sep 23, 2016 4:03 pm
by Route to ILR
CR001 wrote:Route to ILR wrote:w55 wrote:Secret simon what is your stance on this now? Eagerly waiting for your reply. As u and other gurus keep saying people that u r illegal once u withdrew your appeal.
If you read the thread, the OP did not withdraw the appeal, HO did. There is a difference. In most refusals, HO has not made an error.
I already read the thread Char. If u put a new application within 28 days of withdrawal (whether HO withdraw or Appellant your stay still count legal as long your new application get approved. Recently someone i know got his citizenship he also withdrew the appeal and apply ILR within 28 days.
Re: Refused Naturalisation
Posted: Fri Sep 23, 2016 4:05 pm
by Casa
secret.simon wrote:You are going to have to provide some more facts before we can advise you.
What is the error in judgment? What facts are you disputing with the Home Office?
@ Route to ILR Having all the facts would have aided advice as requested in secret.simon's last post which had no response.
Re: Refused Naturalisation
Posted: Fri Sep 23, 2016 4:21 pm
by Route to ILR
Casa wrote:secret.simon wrote:You are going to have to provide some more facts before we can advise you.
What is the error in judgment? What facts are you disputing with the Home Office?
@ Route to ILR Having all the facts would have aided advice as requested in secret.simon's last post which had no response.
So, ironically, if the HO withdrew their case, the judge likely did not make an order and hence it is quite likely that the wife was illegally in the UK between the end of the administrative review (upto UTT) and the successful application.
I am referring to the above CASA
Re: Refused British Citizenship on the basis of Over stay.
Posted: Sat Sep 24, 2016 2:29 pm
by Zaidii
Not trying to hijack the thread but I think it's relevant.
I juat recieved ceremony invitation letter today.
My visa application was refused in July 2013. I appealed the decision and my appeal got dismissed at FTT and UTT.
My case was at COA after dismissal from UTT which I withdrew on the 29th of May 2015 and applied for SET LR on 2nd ofJune 2015. Got approval on the 8th of June and applied for naturalization on the 13th of June 2016 and got the ceremony invitation letter today.
So the time I spent while my case was in courts counted as legal stay.
Thanks
Zaidi
Re: Refused British Citizenship on the basis of Over stay.
Posted: Sun Sep 25, 2016 7:25 am
by jaweb
Hi all,
Not about I need to defent the moderators but people write down a few details of their lives and expect people to answer their questions. They are volunteers so they use their own time to respond so respect would be at least to them!!!
Anyway, I am no expert but if someone doesnt get the visa straight away so it was refused by HO means something is dodgy as I kept asking visas for my husband and children and I was never refused as I always obeyed the rules. Never attanded any court