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ILR application 2 months after brp expired (overstaying)

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

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ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Tue Oct 04, 2022 12:15 pm

Hi everyone,

I need your advices on series of unlucky situations and our mistakes caused this issue.

My wife stayed in the UK under Tier-2 dependant visa for 5 years. Her brp was expiring on 01 May 2022 and she was about to apply for ILR. We had a baby born in 28 Jan 2022 and wife wasn't able to study Life in the UK exam because the baby was 3 months old, I was full time going to the office and there was no one can help her. So basically she couldn't study in time. She was failed from the life in the UK exam twice and finally passed but it was 29th June when we did her online ILR application. So it was almost 2 month after brp expired. We didn't provide a good reason during the application because there was no medical condition we can prove or other good reason rules. We didn't know overstaying is that much serious situation, we just realised.

By the way, I got my ILR in May 2022 and our baby has recently became British Citizen through MN1 application. But if wife gets refused and asked to leave the UK, that means we all leave. All these years of effort will be rubbish.

I know all of the above reason are our responsibility but things happened. So at moment we are waiting her application decision, didn't receive anything yet but we think her ILR will likely get refused. What can we do if she get refused? Is there any one had similar problems.

Thank you in advance.

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Re: ILR application 2 months after brp expired (overstaying)

Post by zimba » Tue Oct 04, 2022 12:25 pm

This is an example of very poor immigration planning. This is why it is important to seek advice before visa expiry to plan things according to the rules. Her ILR very likely will be refused as she has been overstaying and does not have a continuous lawful residence. She simply had to apply for an extension before her visa expiry to maintain lawful residence. As you have ILR now, she will be able to apply under family rules and easily get a family visa, however, her ILR will be delayed by another 5 years. I suggest not catastrophising. No one is going to kick you out
Advice is given based on my personal research and experience only. Do NOT contact me via private message for immigration advice

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Re: ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Tue Oct 04, 2022 12:31 pm

Hi Zimba,

Thank you for your quick answer.

Would it help if we send a cover letter explaining this situation while the application in process? Or would we have a chance to appeal or just accept the result?

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Re: ILR application 2 months after brp expired (overstaying)

Post by zimba » Tue Oct 04, 2022 12:35 pm

thereale wrote:
Tue Oct 04, 2022 12:31 pm
Hi Zimba,

Thank you for your quick answer.

Would it help if we send a cover letter explaining this situation while the application in process? Or would we have a chance to appeal or just accept the result?
You do not get any appeal rights. You could have added a cover letter with the application but it is very unlikely that UKVI grants ILR with such a concession. Not being able to pass the LIUK test does not qualify as exceptional circumstances
Advice is given based on my personal research and experience only. Do NOT contact me via private message for immigration advice

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Re: ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Thu Oct 06, 2022 11:55 am

Hi Zimba,

This as you said is a poorly planned application, it's all my fault. I know overstaying is a criminal offence but we were never been "true" criminals, we did silly mistakes. We worked under tier-2, paid every penny of our tax, lived like every normal people in the UK. You might say that you are idiot or anything, you are right but it's already happened. We know we can't bring her 5 years back.

But we do not want to commit more "crime" from now so I'll have some more questions before things get worse. You advices are so much appreciated.

1- She is still in the UK with me and baby. She hasn't left yet as baby needed to apply citizenship. Should she leave the country immediately to avoid being deported or wait for the decision made?

2- Since she has now overstayed more than 5 months, could she get a ban from re-entering the UK? Then this means she can't re-apply for spouse visa soon.

3- She was on maternity leave before the visa expiry and kept receiving maternity pay for a few month from her company after brp expired. Could this cause more issues to her?

Again thank you for your great support.

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Re: ILR application 2 months after brp expired (overstaying)

Post by Ticktack » Thu Oct 06, 2022 1:05 pm

thereale wrote:
Thu Oct 06, 2022 11:55 am
Hi Zimba,

This as you said is a poorly planned application, it's all my fault. I know overstaying is a criminal offence immigration offence but we were never been "true" criminals no one can call you that , we did silly mistakes. We worked under tier-2, paid every penny of our tax, lived like every normal people in the UK. You might say that you are idiot or anything, you are right but it's already happened. We know we can't bring her 5 years back.

But we do not want to commit more "crime" from now so I'll have some more questions before things get worse. You advices are so much appreciated.

1- She is still in the UK with me and baby. She hasn't left yet as baby needed to apply citizenship. Should she leave the country immediately to avoid being deported or wait for the decision made?As you've made an application, wait to hear back first

2- Since she has now overstayed more than 5 months, could she get a ban from re-entering the UK? Then this means she can't re-apply for spouse visa soon.It's not that deep.

3- She was on maternity leave before the visa expiry and kept receiving maternity pay for a few month from her company after brp expired. Could this cause more issues to her?She needs to stop work immediately, as she has no valid work permit. This would be clearly evident in her HMRC records.

Again thank you for your great support.
No sin in failing, you just have to try and try again!

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Re: ILR application 2 months after brp expired (overstaying)

Post by zimba » Fri Oct 07, 2022 11:42 am

thereale wrote:
Thu Oct 06, 2022 11:55 am
Hi Zimba,

This as you said is a poorly planned application, it's all my fault. I know overstaying is a criminal offence but we were never been "true" criminals, we did silly mistakes. We worked under tier-2, paid every penny of our tax, lived like every normal people in the UK. You might say that you are idiot or anything, you are right but it's already happened. We know we can't bring her 5 years back.

But we do not want to commit more "crime" from now so I'll have some more questions before things get worse. You advices are so much appreciated.

1- She is still in the UK with me and baby. She hasn't left yet as baby needed to apply citizenship. Should she leave the country immediately to avoid being deported or wait for the decision made?

2- Since she has now overstayed more than 5 months, could she get a ban from re-entering the UK? Then this means she can't re-apply for spouse visa soon.

3- She was on maternity leave before the visa expiry and kept receiving maternity pay for a few month from her company after brp expired. Could this cause more issues to her?

Again thank you for your great support.
Overstaying is not a [inditable?] criminal offence, who gave you such an idea ? Also, you cannot haggle your way out of the immigration problems. I already told you that in case of refusal, she applies under the family route using form FLR(M). She does NOT need to leave the UK at all. Immigration entry bans and other restrictions under the rules do NOT apply to people applying under family routes. She is currently an overstayer and has on the right to work ! If resued, simply apply again using form FLR(M)
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Re: ILR application 2 months after brp expired (overstaying)

Post by JB007 » Fri Oct 07, 2022 4:18 pm

Zimba wrote:
Fri Oct 07, 2022 11:42 am
Overstaying is not a criminal offence, who gave you such an idea ?
Likely the UK government - Section 24 of the Immigration Act 1971.

And wasn't there something in the Nationality and Borders Act 2022, about increasing the maximum sentence for this crime?

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Re: ILR application 2 months after brp expired (overstaying)

Post by JB007 » Fri Oct 07, 2022 4:32 pm

Zimba wrote:
Fri Oct 07, 2022 11:42 am
She is currently an overstayer and has on the right to work !
No right to bill free use of the NHS either.

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Re: ILR application 2 months after brp expired (overstaying)

Post by zimba » Fri Oct 07, 2022 4:46 pm

JB007 wrote:
Fri Oct 07, 2022 4:18 pm
Zimba wrote:
Fri Oct 07, 2022 11:42 am
Overstaying is not a criminal offence, who gave you such an idea ?
Likely the UK government - Section 24 of the Immigration Act 1971.

And wasn't there something in the Nationality and Borders Act 2022, about increasing the maximum sentence for this crime?
Technically yes but practically no. No one is prosecuted for simply overstaying (has it ever happened??) hence no crime has been proven to have occurred, so the matter of technicality is of less importance here. NABA also does not change this as far as I see
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Re: ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Thu Oct 13, 2022 8:54 pm

Dear forum members,

I'd like to thank you for your great support. I've had a very bad two weeks since realising our application will be rejected and imagining further consequences, but your valuable advice gave me a bit calming.

I couldn't see an official statement about overstaying is criminal offence, but many webpages say it is. I think it is technically a criminal offence but there is no prosecution heard.

On the other hand, I don't think there is such a difference between simple overstaying vs complicated overstaying. Although her situation is not like the other overstayers that HO is preventing to stay who intentionally remain in the UK because of not being able to get an appropriate visa to live or work, she was already eligible to apply for ILR but made a bad mistake in the application. Anyone can see this by looking at her application and past records in the country. I am hoping this will be considered.

As mentioned earlier, she was on maternity leave. She received a few months maternity pay after the visa expired but was cut a while ago due to coming to the payment limit. She didn't actively work since the visa expiry but was the employee of the company until last week. She has left her job now.

There is nothing much we can do for now, so we'll wait until a decision made by the HO.

I'll be updating the post once we receive a letter.

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Re: ILR application 2 months after brp expired (overstaying)

Post by JB007 » Tue Oct 18, 2022 1:03 pm

It's so unfortunate that you didn't take advice when you realised your wife could not pass the Life in the UK Test for ILR and her visa was running out. It must be very stressful for you both while you wait for the result of her application.

There are a couple of articles here that might help understand and prepare for where she might be now for immigration purposes.

https://freemovement.org.uk/how-oversta ... your-life/

https://freemovement.org.uk/overstaying-on-a-uk-visa/


The new law that brought an increase in sentence under the Natioanality and Borders Act 2022, for overstayers and those who enter the UK illegally, appears to be more about those who knowingly overstay their visa because they don't want to leave.

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Re: ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Mon Nov 07, 2022 3:00 pm

Dear forum members,

We are still waiting for the decision. We know her current application will be refused.

I am in a complicated situation now; I need your valuable advice and let me explain here.

My wife is very depressed. She gradually fell after giving birth to post-natal trauma, and this visa situation hit her a lot. She is getting online therapy for a psychologist, but her mood does not change much. The only thing she wants to do is to go home country.

My wife and I have not been able to go to our home country for the last 15 months. She was six months pregnant when she last time left the UK. She had some health issues during her pregnancy after coming back to the UK, so she needed to visit the hospital more often than a normal pregnant woman. Then she gave birth in the UK, and we had to wait for me to get ILR so we could apply to register the baby as a British citizen, again couldn't leave, then we found our mistake in her ILR application, and since then we are still waiting for the decision. So much has happened for the last 1.5 years, and she now wants to go home. I tried to hold her till now as if she leaves the UK, she'll not be able to return. The processing time for a spouse visa from outside the UK is up to 6 months, and the priority option is now on hold (I am guessing due to the Ukrainian crisis) However it's up to 2 months if applied from the UK. For this reason, I tried to calm her to wait -at least- for a decision letter to come from the HO because I would be separated from my child and my wife for months which I don't want to be.

So for the baby's and her good, I need to make the best decision now, but I just want to understand if my estimations are correct.

Since she is an overstayer, can she apply for a spouse visa from the UK, or the only option she has is to apply from outside of the UK? As mentioned above, this makes a big processing time difference.

If she can't apply from the UK, there is no reason for me to hold her here; even though I'll be separated from my baby for a while, it'll be good for my wife.

Thank you for your support.

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Re: ILR application 2 months after brp expired (overstaying)

Post by Ticktack » Mon Nov 07, 2022 3:09 pm

thereale wrote:
Mon Nov 07, 2022 3:00 pm
Dear forum members,

We are still waiting for the decision. We know her current application will be refused.

I am in a complicated situation now; I need your valuable advice and let me explain here.

My wife is very depressed. She gradually fell after giving birth to post-natal trauma, and this visa situation hit her a lot. She is getting online therapy for a psychologist, but her mood does not change much. The only thing she wants to do is to go home country.

My wife and I have not been able to go to our home country for the last 15 months. She was six months pregnant when she last time left the UK. She had some health issues during her pregnancy after coming back to the UK, so she needed to visit the hospital more often than a normal pregnant woman. Then she gave birth in the UK, and we had to wait for me to get ILR so we could apply to register the baby as a British citizen, again couldn't leave, then we found our mistake in her ILR application, and since then we are still waiting for the decision. So much has happened for the last 1.5 years, and she now wants to go home. I tried to hold her till now as if she leaves the UK, she'll not be able to return. The processing time for a spouse visa from outside the UK is up to 6 months, and the priority option is now on hold (I am guessing due to the Ukrainian crisis) However it's up to 2 months if applied from the UK. For this reason, I tried to calm her to wait -at least- for a decision letter to come from the HO because I would be separated from my child and my wife for months which I don't want to be.

So for the baby's and her good, I need to make the best decision now, but I just want to understand if my estimations are correct.

Since she is an overstayer, can she apply for a spouse visa from the UK, or the only option she has is to apply from outside of the UK? As mentioned above, this makes a big processing time difference.

If she can't apply from the UK, there is no reason for me to hold her here; even though I'll be separated from my baby for a while, it'll be good for my wife.

Thank you for your support.
Why not wait to hear from the HO first before you make such an irreversible and irrational decision (to leave the UK). Naturally, such an issue would be a punch in the gut.
Even "if" her ILR is rejected, she might be given leave to stay based of private life.

The battle might be lost, but the war isn't.
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Re: ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Mon Nov 07, 2022 3:25 pm

Hi Tictack,

Thank you for your quick response.

I agree with you and it's common sense. Even she is not given any visa extension, she there is a big difference in applying inside the UK vs outside the UK. However it's difficult to change a growing idea in someone's mind, especially when is in depression.

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Re: ILR application 2 months after brp expired (overstaying)

Post by trd11862 » Wed Nov 16, 2022 12:09 am

Dear all,

We have received a letter from HO. It's neither approval nor refusal.

HO is basically saying that she is considered as an overstayer. The letter says that there is no explanation in the application why she has applied after her visa expired and asking to provide the evidences and explanation to give the final decision. In addition to this they are asking evidences of her co-habitation with me.

I know this not promising anything but It is very exciting that they gave us a chance instead of just refusing.

We have of course a lot of evidences about living together like our council tax bills, mortgage statements and even a child born in the UK. Instead of making up a story we want to be honest and tell them the truth and she couldn't prepared for the exam while looking after 3 months old baby.

What are your opinions about this?

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Re: ILR application 2 months after brp expired (overstaying)

Post by zimba » Wed Nov 16, 2022 1:54 am

I think this is very positive. You should provide a letter with all the explanation and evidence of the newborn as well as cohabitation documents (any evidence can be used linking you and your spouse to the same address) Hopefully you get a positive response
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