ILR route on 10 years but with over stayed status previously

[vinny]

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.

Note that if they regard any immigration breach in the past to be considered as an immigration breach, then

E-LTRP.2.2. The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

may prevent her from ever switching to FLR(M) under the 5 year route.

Moreover, she probably doesn't satisfy the requirements for ILR under the 10 years long residence as her 10 years continuous lawful residence may be broken, failing 276B.

[kasi]

so does this mean when the HO has grant her FLR(FP) visa than they have now given her permission to switch into another visa category such as 5 year route and this also implies that she can apply for ILR as well? I hope I understood your message correctly?

[kasi]

Hi All,

I have applied for my wife ILR under 196D which was considered but refused due the ESOL B1 test was not from the approved list. however, she has passed that test in December 2014 and at that time the OFQUAL ESOL B1 was in the list and we had made one application of her ILR in December 2014 which was rejected due to her visa been expired but they HO never mentioned that the she never met the requirement for English language test.
now they have given us an oppertunity for an administrator review with in 14 days. what shall I do, is there a possibility that HO will accept any argument or will it cost us fees again?

need help please.

Thanks,
Sheraz

[CR001]

ESOL was taken off the HO approved list in November 2015.

[kasi]

It's ESOL entry 3. I remember we have applied for her ILR in December 2014 and at that time it was valid certificate and HO didn't object on that.
is it worth asking for HO review or shall we apply after doing B1 exam?

[CR001]

ESOL was taken off the HO approved list in November 2015.

Rules changed almost a full year AFTER your wife applied for ILR in 2014 and failed.

Do a new test from an HO approach ed test provider.

[WR1]

to the OP, you need to to ensure you keep up to date with the rules at the time of application as they do change often.

The ESOL test was on the list back in December 2014 but the HO changed the rules regarding English tests on 6 April 2015 but continued to except the old tests (then known as the transional list) until Nvember 2015 as long as it was taken prior to 5 April 2015. From November 2015, only the new tests are acceptable from the current SELT English tests.

[kasi]

so there is no way not to get them consider our old ESOL certificate or atleast give us 28 days to provide them with the new B1 test certificate as I have already booked the test for my wife and she will do it as she speaks very good English.

is it worth asking HO for administrative review on our application or shall I apply again with the new certificate?

[CR001]

so there is no way not to get them consider our old ESOL certificate or atleast give us 28 days to provide them with the new B1 test certificate as I have already booked the test for my wife and she will do it as she speaks very good English. No, they won't consider something that they have removed of their list. It is the applicants responsibility to make sure they submit the correct documents.

is it worth asking HO for administrative review on our application or shall I apply again with the new certificate? What error did HO make that would result in a successful AR?

[kasi]

so shall I prepare for another application and pay either £1875 or if I go for inperson than I have to pay £2375 again? will they even not consider to provide few more days to give submit the correct B1 certificate? what would you suggest?

[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?