discretionary leave???

[wowowo]

I really wish somebody can help me and give me some immigration advice.

Basically I am a British National (Oversea) who came to study in the UK on 2000 when i was 16. The Immigration officer at Heathrow airport gave me a 2 year student visa back then. In year 2002 I lost my passport and applied for a new one from UK passport office. the passport came back with no visa or stamps on it. at the time I was 18/19 and was told by my aunt and uncle who has lived here for over 20 years that I was lucky home office did not put a time limit on my passport. ( I know i was very naive but i didnt know the rules). ok so time has passed and i lost my passport again in year 2007 and the passport office gave me a BRITISH CITIZEN passport. I didnt think any more of it than the home office must have known that i have been in the uk for 7 years. I was over the moon with the new nationality and got married with a Chinese National on the same year and helped him to get a 2 years spouse visa to stay in the uk. During 2000 - 2007 i was in the uk without any absense.

In 2009 I went to Hong Kong to give birth to my child and brought him back here in Janurary 2010. my child holds a chinese passport. once we are back in the uk I applied for a British passport for him and nightmare begins. Passport office sent me a letter saying that they have put an incorrect status on my 2007 passport, that i was a British National (Oversea) and I still am. and my son has no claim to a British passport.

So my questions are,
1. Home office made a mistake on my 2007 passport and gave me the wrong nationality, do they have a right to take it away?
2. I have been in the UK for 10 years now since i was 16. for me it is not possible to go back to HOng Kong to start a new life as I have already adopted life here and I regard UK as my home. Can I apply for Discretionary Leave to Remain? what are my chances of successful?
3. If im entitled to apply for Discretionary Leave, how long would the application take to process? because I am doing a higher education course and due to start the third year in september.

Thank you very much for your time and I would be very grateful for your help.

[Wanderer]

I really wish somebody can help me and give me some immigration advice.

Basically I am a British National (Oversea) who came to study in the UK on 2000 when i was 16. The Immigration officer at Heathrow airport gave me a 2 year student visa back then. In year 2002 I lost my passport and applied for a new one from UK passport office. the passport came back with no visa or stamps on it. at the time I was 18/19 and was told by my aunt and uncle who has lived here for over 20 years that I was lucky home office did not put a time limit on my passport. ( I know i was very naive but i didnt know the rules). ok so time has passed and i lost my passport again in year 2007 and the passport office gave me a BRITISH CITIZEN passport. I didnt think any more of it than the home office must have known that i have been in the uk for 7 years. I was over the moon with the new nationality and got married with a Chinese National on the same year and helped him to get a 2 years spouse visa to stay in the uk. During 2000 - 2007 i was in the uk without any absense.

In 2009 I went to Hong Kong to give birth to my child and brought him back here in Janurary 2010. my child holds a chinese passport. once we are back in the uk I applied for a British passport for him and nightmare begins. Passport office sent me a letter saying that they have put an incorrect status on my 2007 passport, that i was a British National (Oversea) and I still am. and my son has no claim to a British passport.

So my questions are,
1. Home office made a mistake on my 2007 passport and gave me the wrong nationality, do they have a right to take it away?
2. I have been in the UK for 10 years now since i was 16. for me it is not possible to go back to HOng Kong to start a new life as I have already adopted life here and I regard UK as my home. Can I apply for Discretionary Leave to Remain? what are my chances of successful?
3. If im entitled to apply for Discretionary Leave, how long would the application take to process? because I am doing a higher education course and due to start the third year in september.

Thank you very much for your time and I would be very grateful for your help.

1. Yes

2. Worth a HR art 8 app.

3. Long time - then six years on DL, probably at full international fees at uni.

[wowowo]

thank you for your reply, so if i were to apply discretionary leave, it is worth it to mention the fact that passport office made a mistake on giving me a british citizen passport in 2007? also when u say the process takes long, approx how long? 6 months? 1 year? 2 years? or more than that? during the wait am I allow to take up employment? and i've just spoken to an immigration advisor and he said i've not got a very strong case and the process would only take 3 to 13 weeks?

thank you i kno theres alot of questions.

[Wanderer]

thank you for your reply, so if i were to apply discretionary leave, it is worth it to mention the fact that passport office made a mistake on giving me a british citizen passport in 2007? also when u say the process takes long, approx how long? 6 months? 1 year? 2 years? or more than that? during the wait am I allow to take up employment? and i've just spoken to an immigration advisor and he said i've not got a very strong case and the process would only take 3 to 13 weeks?

thank you i kno theres alot of questions.

Search the site - I think I read some cases waiting for three years but some only a few weeks.

Technically now you are out of status so can't work AIUI but really this case is too complicated for us mere mortals, I'd engage a good immigration lawyer and argue Art 8 and why should you suffer due to Home Office error, etc....

Mind you HO could argue you must have known a British Passport issue was wrong and should have queried it - so I dunno - lawyer time and not a cheap one!!

[wowowo]

hi there thanks again for your reply. I've just found something interesting from the Chinese Nationality Law. On article 8 its says 'anyone who acquired foreign nationality of his own free will shall automatically lose Chinese nationality.'

so techically I've lost my Chinese Nationality in 2007 do u think? since British National (Oversea) isnt really a nationality, its just a status for travel purposes. then i am technically without a nationality?

Could this be a point to argue?

[Wanderer]

hi there thanks again for your reply. I've just found something interesting from the Chinese Nationality Law. On article 8 its says 'anyone who acquired foreign nationality of his own free will shall automatically lose Chinese nationality.'

so techically I've lost my Chinese Nationality in 2007 do u think? since British National (Oversea) isnt really a nationality, its just a status for travel purposes. then i am technically without a nationality?

Could this be a point to argue?

Good point.

AIUI a BNO can claim ILR if they are otherwise stateless and have not made themselves stateless, so as the HO error has made you stateless (on the face of it) then I can't see why they won't give you ILR or ROA.

Best to have a lawyer on this tho, unless ur a good fighter! The HO will undoubtably try and give you the runaround and it might cause you to depair - it would me. Look into regaining ur Chinese nationality too, not in defeat but to counter any claims the HO might try on you, so u can quote Chapter and Verse on why that might be possible....

[wowowo]

thank you once again for your response, your advice has been very helpful

I have come up with 2 solutions:
1. apply to register as a british citizen for stateless (but of course I will need confirmation from Chinese Authority to identify me as stateless as of 2007 first). and since HO says it will only take 2-4 weeks to process at busy times i think it might be worth a try.
http://www.ukba.homeoffice.gov.uk/sitec ... de_bos.pdf
2. If that fails then I will apply for discretionary leave

but of cos I will ask another solicitor's advice regarding the above. I've got a free immigration advice appointment tomorrow and an immigration solicitor appointment on thursday. i will see what they say

i will keep u updated about how it goes

hmm... just one last question. u said some application for discretionary leave takes few weeks and some takes 3 years. are the ones that takes longer more likely to be successful? because if i have to wait for another 3 years my child will be 4 and it will be even harder for us to have to move back.

[wowowo]

update

I have written to my MP and he said he has contacted home office on my behalf and will let me know when he gets a reply. not sure if its a good or bad thing...