Refused citizenship application

[zakes123]

Hi Amber and everyone on this thread. I am seeking advice on how to go about my application for reconsideration following a recent refusal for naturalisation. I applied for AN on 10/09/2014 and received my refusal letter on 01/06/2015 on grounds of being in breach of rules during qualifying period (5 yrs from 10/09/2009 to 10/09/2014 based on my application date).
Currently I have ILR since 12/03/2010 given outside rules - legacy case settlement. Came legally to the UK using own passport which was with-held by HO, claimed asylum on entry, refused then appealed. My case was pending for a long time until ILR granted, with a period of detention in between whilst HO tried to remove but failed as they misplaced my passport. Now I'm surprised to find out that I was in breach of immigration rules since 2003 as HO claims my appeal rights were exhausted. I was detained at a removal centre whilst HO pursued my repatriation but failed on account of not having my passport. I then applied to a magistrates court to be released from detention. I had a pending application with HO acknowledged in 11/2003 but HO claim I was in breach since 05/2003. How could I have been in breach when I was in detention in 2005 then released after court hearing deemed my detention unlawful, after which I had to report at an immigration centre? Does that not mean I had temporary leave to enter considering I was in NASS provided accommodation as well? How could they grant ILR if I was in breach. Can I apply for reconsideration and do I have strong enough grounds?

[PrestonLancs]

A verdit of unlawful detention does not mean that a court ruled that your stay in UK was legal. Two totally different things.

Once your appeal rights were exhausted, you became illegal.

If HO could not remove you, that does not mean your stay in UK becomes legal.

A grant under legacy does not make your previous stay legal either.

[Siraj ud-Daulah]

A verdit of unlawful detention does not mean that a court ruled that your stay in UK was legal. Two totally different things.

Once your appeal rights were exhausted, you became illegal.

If HO could not remove you, that does not mean your stay in UK becomes legal.

A grant under legacy does not make your previous stay legal either.

Are you trying to say HO could not remove someone in the past, but later on rule changed and makes them illegal for that period now?

How could a grant not be legal?

[zakes123]

[quote="PrestonLancs"]A verdit of unlawful detention does not mean that a court ruled that your stay in UK was legal. Two totally different things.

Once your appeal rights were exhausted, you became illegal.

Hi Prestonlancs

I agree with your comments and as unfair as it sounds that is the law so you are right, however,you do not address my question. First, did I not have the right to be here whilst my further representations were pending despite my appeal rights being exhausted? Second does the fact that the court ruled in my favour (against my detention) not mean that the judge actually agreed with me that I had legitimate grounds to be present in UK whilst my applications were being considered? Third, does not an arrangement for my release from detention and having a reporting order in place suggest some type of temporary admission and therefore should be deemed legal?

"If HO could not remove you, that does not mean your stay in UK becomes legal."
My stay was based on my article 8 application submitted after having exhausted my appeal rights. However, how could I return to my country of origin whilst HO retained my passport. Their failure to remove me whilst I was in their hands with all their resources at their disposal only suggests that it would have been even more impossible for me to do so myself having neither the means nor the documentation. And once the failed removal was established, should HO not have granted a temporary admission to regularise my stay?

[secret.simon]

How could they grant ILR if I was in breach.

ILR and citizenship are two completely unrelated statuses, both governed by different Acts of Parliament. A grant of one does not entail the grant of the other. It sounds like you may have been granted ILR either under a long residency provision or even outside the rules. If it were outside the rules, it is possible for it to be granted even assuming a period of illegal status.

Your status is legal while your application is under consideration by the Home Office and any subsequent appellate provision. I am not sure that an Article 8 application (which logically is not an appeal, but a separate procedure as your appeals were exhausted) would be covered by 3C/3D cover.

How could I have been in breach when I was in detention in 2005

Interesting question. The way I would argue it is that detention by itself does not rectify any breach of immigration laws in the UK. To the contrary, it could be argued that detention meant that you did not have the choice of rectifying the illegal stay by leaving. When you were in detention, did you in any way communicate that you were OK with being deported? Any other indication could have been construed as wishing to continue to stay illegally in the UK.

Lack of a passport by itself is not an impediment to leaving the country. You could be issued with a one-way travel document (IS137) by the Home Office, if you showed willingness to leave the UK. So, you can not plead that in defence.

I am not a lawyer. But I would suggest to the OP that his best option is to sit this one out and apply after 10 years of legal stay. Citizenship is not a part of the immigration pathway and is taken more seriously by the government and should be taken more seriously by all applicants.

Are you trying to say HO could not remove someone in the past, but later on rule changed and makes them illegal for that period now? How could a grant not be legal?

Inability to remove somebody does not make their stay legal. The Home Office has to follow the law and go through procedures to remove people. While it is going through such procedures, if the person's underlying leave has expired, he is in breach of immigration laws.

A grant only makes the stay legal going forward. So, if after five years of illegal stay, a person is granted leave to remain, that does not wipe out the five years of illegal stay.

[geriatrix]

I have ILR since 12/03/2010 given outside rules

Having allowed you remain the UK / provide accommodation / unlawful detention etc. etc. does not make your illegal stay in the UK legal. The day you exhausted your appeal rights to contest refusal of asylum and any associated section 3C leave you became an overstayer and ....Your legal stay in the UK started on 12/03/2010. The earliest you could have applied for naturalisation was 12/03/2015.

[secret.simon]

First, did I not have the right to be here whilst my further representations were pending despite my appeal rights being exhausted?

No. When your appeal rights are exhausted, your stay becomes illegal. Even if your Article 8 application were to succeed, the amount of time between your appeal rights ending and Artocle 8 succeeding would have been illegal as there was no legal basis for your stay.

Second does the fact that the court ruled in my favour (against my detention) not mean that the judge actually agreed with me that I had legitimate grounds to be present in UK whilst my applications were being considered?

No. All that it means was that the judge felt that being held in prison was not the appropriate reaction to your being in the country illegally. A person who is fined or given a conditional sentence is guilty of having broken the law to the same extent as a person who is jailed. And with respect (no intention to hurt feelings), you were in breach of immigration laws.

Third, does not an arrangement for my release from detention and having a reporting order in place suggest some type of temporary admission and therefore should be deemed legal?

No, that was the alternative to being in prison. Being on probation does not make you any less guilty than being in prison.

"If HO could not remove you, that does not mean your stay in UK becomes legal."
My stay was based on my article 8 application submitted after having exhausted my appeal rights. However, how could I return to my country of origin whilst HO retained my passport. Their failure to remove me whilst I was in their hands with all their resources at their disposal only suggests that it would have been even more impossible for me to do so myself having neither the means nor the documentation. And once the failed removal was established, should HO not have granted a temporary admission to regularise my stay?

I have answered these points in my previous post. Just to repeat, even if the HO did grant temporary admission, it is only a grant going forward and you would have remained illegal between the expiry of your appeal rights and the grant of temporary admission.

[secret.simon]

Your legal stay in the UK started on 12/03/2010. The earliest you could have applied for naturalisation was 12/03/2015.

@sushdmehta, surely you mean 12/03/2020.

[geriatrix]

Your legal stay in the UK started on 12/03/2010. The earliest you could have applied for naturalisation was 12/03/2015.

@sushdmehta, surely you mean 12/03/2020.

The OP states that the ILR was granted on 12/03/10 ... so the earliest the OP could have applied for naturalisation was 12/03/2015 (after five years legal stay in the UK). Because the OP applied in 10/09/2014 ... which brings the period between 10/09/2009 and 11/03/2010 into qualifying residential period when OP was an illegal migrant .. hence the refusal.

Had the OP applied on / after 12/03/2015, OP wouldn't have been refused for "breach of immigration rules" prior to 12/03/2010.


Or am I missing something here?

[CR001]

@Sushdmehta - I suspect secret.simon is referring to the new requirement for good character and those who have had periods of illegal stay face a 10 year wait from the the day they either left the UK or had legal status before they will be eligible for citizenship.

This Good Character Topic done by Amber is useful if you have not seen it yet.

[geriatrix]

Aah! Laws have changed while I was away from the forum!
Apologies .....

[CR001]

They have indeed Sushdmehta and we have been playing a lot of catch up in the last 6 months with all the changes. Amber is an angel for doing a summarised timeline of changes Here.

You will see there are many refusals recently for citizenship and ILR and even differences in declared income to UKVI vs HMRC and tax paid (Tier 1 to ILR) is being scrutinised and receiving refusals for ILR.

BTW - It is great to see you back

[Siraj ud-Daulah]

Aah! Laws have changed while I was away from the forum!
Apologies .....

Indeed, and even those who submitted before the change are caught up on it. Such a shame to what message Britain is sending out to the rest of the immigrants across the world. In the long run, more high skilled immigration is bound to be routed towards other countries, instead of here.