Refused BC - Pre Action Protocol

Hi,
I have opened this subject regarding my husband BC application. He is Canadian and has ILR 20 years.
We applied naturalisation online at 12/07/2918 and refusal letter dated 29/08/2018.
Here the letter details which is not certainly clear and would be great if somebody helps me about appeal what we could provide them.

Reason for decision;
Your application has been consireded under section 6(1) of the British Nationality Act 1981.

An applicant under this provision is expected to meet certain residential requirements which are set out at www.gov.uk/becoming-a-british-citizen

Your application was received on 12.07.2018. As you were subject to a time limit on your stay in the United Kingdom, you do not meet the requirement to have been free from any time restrictions on your stay for the whole of the twelve months prior to your application. The Secretary State has considered your failure to meet this requirement but cannot find sufficient grounds to do so and your application has therefore been refused.

If you still wish to become a British citizen a fresh application will be required. It is open to you to re-apply at any time, but you may wish to note that an application made before 12.07.2019 is unlikely to be successful.

He had 3 trips between 12/07/2017 to 12/07/2018. It is a total of 43 days. When he travels to Europe he is not custom free since he is holding a Canadian passport.
These are;
04/03/2018 to 09/03/2018 5 days Turkey direct flight
29/07/2017 to 05/09/2017 38 days Turkey driving through Europe. On the online application form, I filled as Turkey since the main country stayed was Turkey and the form do not let you select more than one country.

before that period the last visit was;
15/04/2017 to 30/04/2017 15 days.

Would be great if I can get opinions about refusal? If we call or e-mail them will do provide us with more information or not? So shame if they say "cannot find sufficient grounds" why do they not contact us?

Thanks in advance for helps!

What is your nationality?

He is Canadian and has ILR 20 years.

Has he lived in the UK since he got ILR or left at any time for a long period?

An applicant under this provision is expected to meet certain residential requirements which are set out at www.gov.uk/becoming-a-british-citizen

Your application was received on 12.07.2018. As you were subject to a time limit on your stay in the United Kingdom, you do not meet the requirement to have been free from any time restrictions on your stay for the whole of the twelve months prior to your application.

Has he at ANY time been stamped into the UK as a Visitor?? The above indicates that he has not held ILR for at least 12 months. Useful perhaps if you provide more details.

Note also that there is no appeal process for refused citizenship applications.

I am Turkish, I am settled here with spouse visa since he has been holding ILR. I got my visa on him.

He has been living UK since he got ILR and full time employed. He did not leave long time period just 14 years ago 3 months he was in Canada. Came back the UK to his previous company work for them 13 years and start his current job in October 2017. They both a big company employed more than 150 people. I believe they can reach all these details on his NINO. I can see there is no gap when I login his government gateway account.

He was not stamped into the UK as a visitor. Each time travel he asked if he works here and lives here. Never have a problem at the border. We have 2 British citizen kids too, they got their citizenship on his ILR.

Please see the letter details. On the letter it says, it mentions Form NR. Do you think it is a mistake too? Can we not appeal it?

Thank you

Next steps;

If you believe the decision to refuse your application was not soundly based on nationality law, policy or our procedures and you wish it to be reconsidered, you must complete Form NR and pay a fee.

Form NR can be obtained from: https://www.gov.uk/government/publicati ... n-british- citizenship-is-refused-form-nr

The current fee for reconsideration can be found at: https://www.gov.uk/government/publicati ... plications

The Data Protection Act 2018 governs how we use personal data. For details of how we will use your personal information and who we may share it with please see our Privacy Notice for the Border, Immigration and Citizenship system at https://www.gov.uk/government/publicati ... on-use-in- borders-immigration-and-citizenship. This also explains your key rights under the Act, how you can access your personal information and how to complain if you have concerns.

If his passport or BRP card definitely says Indefinite Leave to Remain and he has not been absent for more than 2 years or been stamped in as a visitor, then the refusal doesn't seem to be correct. What evidence of 5 years residence did he submit with his application? His passports alone are not sufficient. It is also not HO's responsibility to run around looking for proof of his residence/employment etc. He should have provided the evidence with his application.

On the letter it says, it mentions Form NR. Do you think it is a mistake too? Can we not appeal it?

Form NR is NOT an appeal process, it is asking HO to do a reconsideration, he can then submit evidence of his residence. There is NO appeal process for citizenship applications.

I have checked his ILR again that is sticker stamped on his passport ;

Given Leave To Remain in the United Kingdom for an indefinite Period. dated 26th March 1999 On behalf of the Secretary of State Home Office.

Online application required documents only asked us the passports. We used NDRS. They have just coppied all 3 passport he had during living in the UK. So the application is refused because they think he was not holding ILR at least 12 months?

For the reconsideration payslips would be OK do you think? What other documents we should provide? Thank you very much again giving us your time.

I would start by applying for an SAR with the Home Office to see why they would have thought that his ILR had expired.

Did you provide proof that he has never been absent from the UK for more than two years?

@secret.simon. That’s a good idea. I did not know we could get all travel& immigration report from HO. With this document it willbe more clear why they refused it.
We did not prove he was not away 2 years. They have all 3 passports. Shows he got ILR and all his travels. Online application did not ask us more documents only passports.
I really do not get it why they ask for NINO if they do not check his work and tax history. He has only 6 months gap (14 years ago) in 21 years of his work life in the UK.
If his ILR expired (never heard it before) how they gave me a settlement visa just 4 months ago on his ILR. My kids age 5,5 and 3,5 have British passports from my husband too. Nothing really make sense

turkey123 wrote: ↑

Sat Sep 01, 2018 3:41 pm

@secret.simon. That’s a good idea. I did not know we could get all travel& immigration report from HO. With this document it willbe more clear why they refused it.
We did not prove he was not away 2 years. They have all 3 passports. Shows he got ILR and all his travels. Online application did not ask us more documents only passports.
I really do not get it why they ask for NINO if they do not check his work and tax history. He has only 6 months gap (14 years ago) in 21 years of his work life in the UK.
If his ILR expired (never heard it before) how they gave me a settlement visa just 4 months ago on his ILR. My kids age 5,5 and 3,5 have British passports from my husband too. Nothing really make sense

you should proof he was in uk the since his ILR . such P60s , employment history , payslips , comfirmation letter from HO confirm when he got ILR , employers references , bank statment showing the money in his account . try to collect the proofs as much you can

rogerr wrote: ↑

Sat Sep 01, 2018 3:58 pm

turkey123 wrote: ↑

Sat Sep 01, 2018 3:41 pm

@secret.simon. That’s a good idea. I did not know we could get all travel& immigration report from HO. With this document it willbe more clear why they refused it.
We did not prove he was not away 2 years. They have all 3 passports. Shows he got ILR and all his travels. Online application did not ask us more documents only passports.
I really do not get it why they ask for NINO if they do not check his work and tax history. He has only 6 months gap (14 years ago) in 21 years of his work life in the UK.
If his ILR expired (never heard it before) how they gave me a settlement visa just 4 months ago on his ILR. My kids age 5,5 and 3,5 have British passports from my husband too. Nothing really make sense

you should proof he was in uk the since his ILR . such P60s , employment history , payslips , comfirmation letter from HO confirm when he got ILR , employers references , bank statment showing the money in his account . try to collect the proofs as much you can

I have requested personal information held by Uk Visas & immigration. So hopefully we can see all his holiday away from the UK. If their record is not right we would know and will try to correct it.
Also applied online Employment history on HM revenue last 21 years.
My husband will give a call and ask for what do they mean 12 months time limit to better understand; if it is refused for 90 days away from UK or Can not apply naturalisation to complete residency +1 year ILR. Those both cases do not apply on his status. Looks like they messed up. Now he wishes for he applied it ages ago when it was cost of nothing and easy!

Hi all,

Thanks again for your help.

Do you advise that we ask for Pre-Action Protocol for Judicial Review rather than go for reconsideration? As I have seen other cases it takes months to a year.
I have spent all day reading this issue. It is certainly an official error. I will wait for SAP but his passports show that The ILR dated 1999, that means not subject to a time limit on his stay in the United Kingdom during the last 12 months.

Thank you.

If he sent proof of his ILR, then they may have the burden of proof to show that he lost it.

vinny wrote: ↑

Sun Sep 02, 2018 12:36 am

If he sent proof of his ILR, then they may have the burden of proof to show that he lost it.

NDRS just sent copy of ILR stamp on his passport. The refusal looks like the caseworker made a mistake his ILR less than 12 months or their record are wrong.
I am the one who has 4 months ILR (after 5 years spouse visa ) The caseworker might be confused. I have to wait for 1 year for application not him. SAP must show he was my sponsor. And all my application process we provide all his work & salary details, our bank statements kids passports get my visas.
If he has expired ILR he would be illegal to work here and I could not get settlement.
I just do not want to reconsideration. Would be something make them response it quicker since we provide what they asked for the application. Why we have to wait for months and years because of the caseworker’s mistake

Hi all,

We have decided to go on with PAP my husband's refusal decision. He has been 19 + years a permanent resident. The caseworker made a mistake and give him refusal for not been free of immigration time restrictions during the last 12 months of the 5-year qualifying period.

I believe it is not complicated and hopefully get a response for PAP and would not need to pay & wait for NR.

Senior moderators and users it would be great for me if you check it for us, please? Anybody experienced refusal turned back & approved without NR with just with PAP?


I am going to fill the HO's PAP form that linked on this page Resolve a dispute with the Home Office through the pre-action protocolhttps://www.gov.uk/government/publicati ... ial-review I will add a copy of his ILR stamp on his passport & Approval letters Many thanks for advance for your help.


Details;

The details of the matter being challenged

Investigate and correction on DE.'s British Citizenship application

The issue

Home Office Ref # 02xxxxxxx refusal letter written by L. M. dated 29th August 2018 detailed below, by The British Nationality Act 1981 law the reason for refusal decision is not correct and must not be applied to DE.'s British citizenship application.

Reason for decision had been explained on the letter with the words below;

Your application has been considered under section 6(1) of the British Nationality Act 1981.

An applicant under this provision is expected to meet certain residential requirements which are set out at www.gov uk becoming-a-british-citizen.

Your application was received on 12.07 2018. As you were subject to a time limit on your stay in the United Kingdom, you do not meet the requirement to have been free from any restrictions on your stay for the whole of the twelve months prior to your application. The Secretary of State considered waiving your failure to meet this requirement cannot find sufficient grounds to do so and your application has been refused If you still wish to become a British citizen a fresh application will be required. It is open to you to re-apply at any time, but you may wish to note that an application made before 12.07.2019 is unlikely to be successful.

However;

DE. has " GIVEN LEAVE TO REMAIN IN THE UNITED KINGDOM FOR AN INDEFINITE PERIOD" dated ** March 1999. Copy of his passport sticker ILR visa provided with his application. (Please see it attached.)

Naturalisation as a British citizen under section 6(1) (2)The requirements referred to in sub-paragraph (1)(a)(c) "that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom"


According to this section on the British Nationality Act 1981, He has been free from any time restrictions on his stay for the whole of the twelve months prior his application. Since he has been United Kingdom permanent resident over 19 years.

Does this ilr any expiry date?

nidaulhaque wrote: ↑

Tue Sep 04, 2018 7:40 pm

Does this ilr any expiry date?

No there is no expiry date on it.

I had my application for BC refused in March 2016 on the basis that I had not provided evidence of the necessary document to demonstrate “you are not subject to conditions of stay in the United Kingdom" and that “since 2015 EEA applicants for naturalisation who have acquired Permanent Residence provide evidence by a document certifying Permanent Residence or a Permanent Residence Card issued by the Home Office”

As I did not have a PRC my application failed despite me providing my passport from 40 years ago with a stamp stating “Given leave to remain in the United Kingdom for an indefinite period”

Mine is an issue which has taken some time to get moving again and I have submitted a further application for BC, I did not go for reconsideration or PAP.

I am certain the ILR your husband holds is a valid ILR and that should have been accepted (providing he did not breach any conditions). On occasion the Home Office do make the wrong decision but the time to rectify their mistakes seems inordinate. Have you thought of contacting your MP to write to the HO, it may save the reconsideration fee? It just may help. Best of luck.

Ffmuni wrote: ↑

Tue Sep 04, 2018 9:23 pm

I had my application for BC refused in March 2016 on the basis that I had not provided evidence of the necessary document to demonstrate “you are not subject to conditions of stay in the United Kingdom" and that “since 2015 EEA applicants for naturalisation who have acquired Permanent Residence provide evidence by a document certifying Permanent Residence or a Permanent Residence Card issued by the Home Office”

As I did not have a PRC my application failed despite me providing my passport from 40 years ago with a stamp stating “Given leave to remain in the United Kingdom for an indefinite period”

Mine is an issue which has taken some time to get moving again and I have submitted a further application for BC, I did not go for reconsideration or PAP.

I am certain the ILR your husband holds is a valid ILR and that should have been accepted (providing he did not breach any conditions). On occasion the Home Office do make the wrong decision but the time to rectify their mistakes seems inordinate. Have you thought of contacting your MP to write to the HO, it may save the reconsideration fee? It just may help. Best of luck.

Thank you. We need luck. Husband’s father lawyer with the title Q.C. But he practices in Ontario Canada not here. Today we spoke with him, he does not know UK immigration laws. I have shared everything. His first suggestion was same as yours to contact with MP. We will do it first thing tomorrow. One of his partner will have a look the case and help us writing the PAP with their terms.
Fingers cross. I will update the post as soon as we get done result.
4 months ago my ILR fee and after his citizenship fee cost us a lot. Just enough paying fee each time and sharing all our paperworks. That’s why NR will be our second option. Without this forum I do not know what I would I do. Great help. Thank you all.

Hi,
I don't think so the home office will respond your PAP because you have one option before PAP which is reconsideration stage application without using the available method. Anyway on these days JR permission is very lengthy process but unfortunately the NR Stage as well have not any time schedule that is why I am afraid to tell you that will help you. It's up to you to make a decision on action.

I was one of the senior member of this board I am fighting with the same thing as you little bit different immigration history.
Applied Naturalisation application with MN1 Registration for children in February 2014 and refused on may 2016. Then NR Stage refused 30 Oct 2017 then PAP application for JR but home office didn't reply to that letter. The applied in January 2018 for JR permission and now it has on the table of Court I don't know what will be happen on 14 September or before but I have limited hopes.
Thank you
Best wishes
Baby Khyber

Did you see the case of Inga Lockington? It was widely reported and on BBC Radio 4. If you search you can find lots of reports on her refusal and the HO response following the publicity. A link to a follow up report from the Guardian is shown below.

https://www.theguardian.com/uk-news/201 ... hip-denial

The whole case is interesting as are the final comments/quotes in the Guardian article
“A Home Office spokesman said: “We have contacted Mrs Lockington to advise her that, following reconsideration of her case, her citizenship application will be granted. We have also taken the opportunity to apologise to her for the initial decision”
It said guidance had been reissued to reinforce the importance of consideration of wider immigration status in all cases for citizenship.

Ah, as in the case of the OP, they also failed to recognise the grant and consequence of indefinite leave.