Before Nov 2016; Previous Immigration Rule

Good morning,

I have been checking in and out of this forum in search of answers to multiple questions I have had since submitting my Naturalisation Application in March. There is one question, however, I am unable to find an answer to:

Before the changes that came in effect around Nov 2016, if your visa expires without your knowing or for any other reason (s), you had a 28 day grace period to submit an application.

Be it for my ever clean immigration history (and conscience) have always ensured my permission to stay never runs out. I am always making sure that my status remains legal by submitting in time applications and responding to all immigration requests within a timely manner.

Brief History:

I arrived on a TIER 4 Student visa in 2009. I was aware of the conditions imposed on my visa and followed those quite strictly.

After completing my studies, and before my student visa was due to expire made an in time application. Around this time my understanding of immigration law was very limited. Sometimes I would read something and then another which would lead me into further confusion (especially when certain words and/or phrases are being used).

The in time application I made was later refused. I read the reason (s) for its refusal, and came to understand that I made the wrong application. The refusal came in Dec 2014.

I knew that given my particular circumstance (sensitive) that I was eligible for 'something' but, what it was had me scratching my head, trying to figure it out. It was not until around March 2015, so approximately 2 months and some days from refusal of me attempting to do it alone eventually sought legal advice. I did not want to wait any longer because, that which came with the Dec 2014 refusal had then soiled me as an overstayer. It made me uneasy.

It was confirmed to me that I did submit an incorrect application, and that given my particular situation, should have applied for Asylum. She explained what it was and how I fall into this category for protection.

The application was nonetheless refused adding time as an overstayer (which came as a shock to me). Appeal was successful (which made me question the caseworker. She could have saved me an additional few months for something that could have easily been seen through).

Cut to modern times:

I have had Refugee Status for 5 years, and ILR for 12 months before applying for Naturalisation.

On and after Nov 2016 when the new 14 day grace period came into effect doing away with the previous 28 days; if now an in time application is refused have 14 days to rectify this. What was it before, please? Also, as part of the Good Character requirement am expecting discretion to be used for periods of overstaying. Is there anything else in immigration law around this that I may have missed or misunderstood so far?

I look forward to your response,

Thanks

See also Naturalisation as a British citizen by discretion: nationality policy guidance

Immigration breaches and people who have sought asylum in the UK

and

Discretion to waive immigration breaches

on page 32.

vinny wrote: ↑

Thu Jun 02, 2022 1:10 pm

See also Naturalisation as a British citizen by discretion: nationality policy guidance

Immigration breaches and people who have sought asylum in the UK

and

Discretion to waive immigration breaches

on page 32.

Good afternoon Vinny,

I have previously read the attached document parts, which is how I came to understand how discretion will be used. Thank you for reiterating.

The one question I'm struggling to find a sufficient answer to is, 'what rules applied'. After the Dec 2014 refusal came, where did I stand? Currently, there's another 14 days to rectify an invalid application. What was it before?

sleepyboy wrote: ↑

Thu Jun 02, 2022 9:01 pm

Currently, there's another 14 days to rectify an invalid application. What was it before?

(a) It is not 14 days to correct an invalid application.

If you make a further application within 14 days of a refusal AND that subsequent application succeeds, then that period of overstay (between the initial refusal and the grant of the subsequent application) is disregarded for the purposes of any subsequent immigration application.

Keep in mind that naturalisation is not an immigration application and the caseworker for naturalisation would look at the whole immigration journey, including any overstays excused for the purpose of immigration applications.

And (b) in any case, before being reduced to 14 days, the grace period was 28 days.

And the answer is given in the document linked to by @vinny.

Examples of when you might exercise discretion include where:
...
• the applicant had made an ‘in-time’ application, but the application was rejected and so they became in breach
o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the
rejection and before 24 November 2016

• the person had made a late application for leave to remain which was subsequently granted and either the:
o application was not submitted more than 28 days after the expiry of their previous leave and before 24 November 2016
o application was not submitted after more than 28 days overstaying if it was an asylum application
o person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or bereavement
o period of overstaying ended on or after 24 November 2016 and leave was granted in accordance with paragraph 39E of the Immigration Rules

My advice would be that you should apply for naturalisation on or after the tenth anniversary of the grant of your asylum application in 2016, which is when your legal residence in the UK restarted.

secret.simon wrote: ↑

Fri Jun 03, 2022 3:25 pm

sleepyboy wrote: ↑

Thu Jun 02, 2022 9:01 pm

Currently, there's another 14 days to rectify an invalid application. What was it before?

(a) It is not 14 days to correct an invalid application.

If you make a further application within 14 days of a refusal AND that subsequent application succeeds, then that period of overstay (between the initial refusal and the grant of the subsequent application) is disregarded for the purposes of any subsequent immigration application.

Keep in mind that naturalisation is not an immigration application and the caseworker for naturalisation would look at the whole immigration journey, including any overstays excused for the purpose of immigration applications.

And (b) in any case, before being reduced to 14 days, the grace period was 28 days.

And the answer is given in the document linked to by @vinny.

Examples of when you might exercise discretion include where:
...
• the applicant had made an ‘in-time’ application, but the application was rejected and so they became in breach
o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the
rejection and before 24 November 2016

• the person had made a late application for leave to remain which was subsequently granted and either the:
o application was not submitted more than 28 days after the expiry of their previous leave and before 24 November 2016
o application was not submitted after more than 28 days overstaying if it was an asylum application
o person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or bereavement
o period of overstaying ended on or after 24 November 2016 and leave was granted in accordance with paragraph 39E of the Immigration Rules

My advice would be that you should apply for naturalisation on or after the tenth anniversary of the grant of your asylum application in 2016, which is when your legal residence in the UK restarted.

Hi,

For whatever reason when I was reading that it just didn't stick. I was interpreting something different... I was off...

Thank you, Simon.

My Naturalisation application was submitted in March of this year. I submitted it after reading the qualifying periods of 5 year refugee+1 year ILR (6 years in this particular route).

My question have been answered. Thank you, kind Sir's.

Bye for now!