shahg1983 wrote:Hello everyone,
Need help/advice on the following.
I was refused citizenship last week based on Good Character requirement.
I came to U.K on student visa in 2004. Applied for an extension on 23/08/2010 while I was doing master's degree. My visa was due to expire on 24/08/2010. My application was returned back to me as invalid few days later as there was a problem processing the payment. I was also advised to submit my application again. Due to some personal reasons, I did not apply re-apply and left U.K on 16/09/2010. I came back to U.K in 2011 on spouse visa and got ILR in Jan2014.
Now Home Office has refused my British Citizenship application based on the fact that I was in UK without leave to remain from 24/08/2010 to 16/09/2010. My understanding was that either I had to re-apply or leave the country with in 28 days and I left in 23 days.
I did mention it in my citizenship application.
Now my question is that should I request a re-consideration based on the fact that I left U.K within 28 days or I will be wasting my time and money. Has anyone else been in a similar situation?
Many thanks.
Sorry to hear about your refusal. It seems to me you might have case to request a reconsideration.
Whilst you
did technically overstay for 23 days, that should not have led, in and of itself, to a refusal of citizenship. The IND Nationality Instructions (NI) have now been abolished and replaced by the new Nationality Guidance, but your application was decided under the NI. The below analysis is based on the NI (there is no substantive difference between the NI and the new Guidance).
NI Chapter 18 App. B (residence requirements), para.8.10 reads: "
We should normally exercise discretion to disregard a breach of the immigration laws (i.e. a period of unlawful residence) only if there are reasons for the breach which were clearly outside the individual’s control, or the breach was genuinely inadvertent and short. Examples would include circumstances where (...) the breach arose due to the rejection of an "in-time", but incorrectly completed, mandatory application form for leave to remain, 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;
[or] the breach arose as a result of a late application for leave to remain where the application was submitted no more than 28 days late (or in the case of an asylum application was submitted after no more than 28 days overstaying) and was subsequently granted."
The bit in blue is relevant to your case. Your failure to submit a new application within the 28-day grace period (since abolished) may have been regarded as the key problem in your case. However, strictly speaking, the foregoing policy applies
only to the
5-year qualifying period. Your period of overstaying
predates the 5-year qualifying period. Therefore, the caseworker could only have refused on the basis of Appendix D.
NI Chapter 18 App. D (good character requirement) has additional (more flexible) provisions regarding evasion of immigration control. Unlike App. B set out above, this guidance applies to the
10-year period preceding the application. Para.9.7 of App. D reads: "
The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:
a. failed to report
b. failed to comply with any conditions imposed under the Immigration Acts
c. been detected working in the UK without permission"
This guidance is obviously less prescriptive than the policy applicable to the qualifying period (namely App. B). In fact, the Home Office stated in a Freedom of Information request made just a year ago, in relation to precisely this policy, that "
Annex D covers the good character requirement for naturalisation. Section 9.7 of that annex explains that an application will normally be refused if the person had not been compliant with immigration requirements in the 10 year period before making the application. A period of overstaying of 28 days or less may not on its own lead to refusal on character grounds, but would do so if the person had, for example, failed to report, failed to comply with any other conditions imposed under the Immigration Acts, or been detected working in the UK without permission." See
https://www.whatdotheyknow.com/request/ ... _character On this basis, and if you explain the situation as set out here, a reconsideration request might prove to be successful on the basis of improper application of HO policy.
I actually handed my notice in after receiving the letter and worked my notice period, booked a flight and left UK at my own expense. ( I was thinking that I will be covered under Section 3c but I was so naive)
