Immigrationboards.com

Posted: **Fri Sep 01, 2017 12:28 pm**

Hi All,

my wife Citizen application has been refused and we have received letter yesterday, decision is as follows:

"Reason for decision
An application for naturalization is expected to meet certain United Kingdom residence requirements. These are set out at www.gov.uk/becoming-a-british-citizen.
One of the requirements is that an applicant was not in breach of the immigration laws at any time during their 'qualifying period' of residence. Your application was received at the Home Office on 18/04/17 and so the qualifying period is from 19/04/14 to 18/04/17.
As you were in the UK in breach of immigration law from 24/06/14, when your leave to remain expired to 18/02/16 when you were granted further leave, this requirement is not met.
The Secretary of State has discretion to disregard a breach of the immigration laws for the purpose of an application for nationalization. To make sure discretion is applied rationally and consistently, an established policy is followed. This policy is published in the Nationality Staff Instructions at www.gov.uk/topic/immigration-operationa ... structions.
A breach of immigration laws would not normally be disregarded in any circumstances other than those defined in the poicy. As you do not come within the published criteria, nor is there reason to exercise discretion exceptionally outside these criteria, your application is refused.
If you still wish to become a British citizen, a fresh application fro naturalization must be made. An application can be made at any time but you are advised to ensure, as far as possible, that the residence and other quire met before doing so. In this respect, I should point out that an application made before 14/02/20, is unlikely to be successful. I cannot say in advance of an application what the outcome will be as this will depend upon all our enquirers taken at the time to make sure that the requirements are met."

please note that my wife acquired ILR based on the rule 196D. prior to it, she applied ILR in June 2014 but due to the application form was old her application was refused and then I sent the new application and that was refused because we missed the 28 days due to HO late reply in previous application. later on we consulted with lawyer and filed JR which failed and then she got visa based on "Private and Family life visa". till she acquired this visa, HO has given her temporary admission.

I have two points:
1. It seems that HO has applied 3 years qualifying period to my wife on her application for citizenship. however, she took the route of 196d to get ILR and then applied for Citizenship straightaway as she don't need to be in the country for any specific time to qualify for Citizenship through this route, I might be wrong but would need clarification on this part.

2. she is failed in a good character requirement because she breach immigration law. Although she has applied for applications of extension of visa during that time and all the time HO knew either her case is in court or her application is pending waiting for a decision and finally HO agreed to grant her stay. the rules says that in some conditions, caseworker should apply discretion on "breach of immigration". is there any clause where HO should / could apply discretion on her case? her children who are Born here are British, I got citizenship and she is still waiting. any help would be highly appreciated.

regards,
Sheraz

Posted: **Fri Sep 01, 2017 12:35 pm**

Not sure why you applied when you were already advised, and provided the relevant links, in February to say that she would fail the good character test due her period of overstay.

You were also advised then that Citizenship LAWS are different and completely separate to immigration RULES. What is allowed in one is not necessarily allowed in the other.

indefinite-leave-to-remain/ilr-route-on ... l#p1452574

1. It seems that HO has applied 3 years qualifying period to my wife on her application for citizenship. however, she took the route of 196d to get ILR and then applied for Citizenship straightaway as she don't need to be in the country for any specific time to qualify for Citizenship through this route, I might be wrong but would need clarification on this part.

You are wrong. Citizenship requires residence and all residence must be lawful.

Posted: **Fri Sep 01, 2017 12:56 pm**

in the link: www.gov.uk/topic/immigration-operationa ... structions
of the document it states that:

Breaches of immigration law in the qualifying period
This section tells you who is in breach of the immigration laws and when to exercise
discretion over periods of breach.
‘Breach of the immigration laws’ for the purpose of the residence requirements refers
only to unlawful residence. It does not include contravening immigration law in any
other way, but this is considered as part of the good character requirement.
People who are lawfully resident in the UK
The following people are not in breach of immigration laws:
• people with right of abode in the UK
• people with leave to enter of remain
• citizens of the Republic of Ireland who last arrived in the UK on a local journey
from the Republic of Ireland
• people who are entitled to reside in the UK without leave under EEA regulations
• crew of ships or aircraft
• people who are exempt from immigration control
• people who have disembarked at a UK port but are still in the immigration
control area or have been detained or given temporary admission
A person who is in the UK and does not meet any of the above criteria will be in
breach, as defined in section 50A of the British Nationality Act.

also under the section "Discretion to waive immigration breaches" it says that:
Examples of when you might exercise discretion include where:
• the breach occurred at a time when the applicant was a minor whose parents failed to obtain or renew their leave
• the applicant was a victim of domestic violence whose abusive partner prevented the renewal of leave
• the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach
o this is 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 and before 31 October 2016

under the above guideline, shouldn't HO apply discretion on breach of immigration control?

Posted: **Sat Sep 02, 2017 2:56 pm**

As per your previous post, the application which was rejected was not submitted "in-time" - it was submitted late.

Posted: **Sat Sep 02, 2017 3:00 pm**

mulderpf wrote: ↑
Sat Sep 02, 2017 2:56 pm
As per your previous post, the application which was rejected was not submitted "in-time" - it was submitted late.

MulderPF is correct. Well-spotted.

kasi wrote: ↑
Wed Jun 15, 2016 10:35 am
I applied for my wife ILR on 26th 2014 June as her visa expired on 25th June 2014.

Posted: **Mon Sep 04, 2017 9:43 am**

does it means that for citizenship, my wife have to have 3 years lawful residency before applying for naturalization? is there anyway in which we can appeal now or would it be waste of time and resources?

Posted: **Mon Sep 04, 2017 9:52 am**

kasi wrote: ↑
Mon Sep 04, 2017 9:43 am
does it means that for citizenship, my wife have to have 3 years lawful residency before applying for naturalization? is there anyway in which we can appeal now or would it be waste of time and resources?

The spouse of BC application is based on 3 years residence. To qualify for citizenship and the good character requirement, she must not have any breaches or overstay in the 10 years prior to applying for citizenship.

Posted: **Mon Sep 04, 2017 1:20 pm**

then why HO said in the letter that she can apply after 14-02-20? if the condition is for 10 years?

" I should point out that an application made before 14/02/20"

Posted: **Wed Sep 06, 2017 12:43 am**

secret.simon wrote: ↑
Sat Sep 02, 2017 3:00 pm

mulderpf wrote: ↑
Sat Sep 02, 2017 2:56 pm
As per your previous post, the application which was rejected was not submitted "in-time" - it was submitted late.
MulderPF is correct. Well-spotted.

kasi wrote: ↑
Wed Jun 15, 2016 10:35 am
I applied for my wife ILR on 26th 2014 June as her visa expired on 25th June 2014.

From my understanding, discretion can be applied if
the person had made a late application for leave to remain which was subsequently granted and either the:
o application was not submitted more than 28 days after the expiry of their previous leave and before 31 October 2016. The application was made a day after leave expired but within 28 days.

Posted: **Wed Sep 06, 2017 1:58 am**

Hstepper07 wrote: ↑
Wed Sep 06, 2017 12:43 am
From my understanding, discretion can be applied if the person had made a late application for leave to remain which was subsequently granted and either the application was not submitted more than 28 days after the expiry of their previous leave and before 31 October 2016. The application was made a day after leave expired but within 28 days.

Correct. But that does not apply in this case because the subsequent "late" application was not granted. It was a much later application well outside the 28 days that was granted.

As I see it, the OP's wife does not meet either bulletpoint 2 or 3 below.

Page 27 of Nationality policy: Naturalisation as a British citizen by discretion wrote:You must only exercise discretion to disregard a period of unlawful residence if there are reasons for this which were clearly outside the applicant’s control, or if the breach was genuinely inadvertent and short.

Examples of when you might exercise discretion include where:

• the breach occurred at a time when the applicant was a minor whose parents failed to obtain or renew their leave • the applicant was a victim of domestic violence whose abusive partner prevented the renewal of leave
• the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach
- this is 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 and before 31 October 2016
• the person had made a late application for leave to remain which was subsequently granted and either the:
- application was not submitted more than 28 days after the expiry of their previous leave and before 31 October 2016
- application was not submitted after more than 28 days overstaying if it was an asylum application
- person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or bereavement o period of overstaying ended on or after 31 October 2016 and leave was granted in accordance with paragraph 39E of the Immigration Rules
• the person arrived the UK clandestinely but either presented themself without delay to the immigration authorities or was detected by the immigration authorities shortly after arrival: o the maximum period involved should normally be 1 month, but may be longer if there are extenuating circumstances o in these cases you can waive the breach that occurred from entry until the person’s first application for leave or asylum was determined, provided the application was granted
• an application for asylum or leave to remain was refused but was later acknowledged to be an incorrect decision and the appropriate leave was granted

You must not exercise discretion to disregard a period of unlawful residence in any other circumstances, and particularly not when the breach was both substantial and deliberate.

kasi wrote: ↑
Mon Sep 04, 2017 1:20 pm
then why HO said in the letter that she can apply after 14-02-20? if the condition is for 10 years?

" I should point out that an application made before 14/02/20"

This puzzles me too. I would have thought she would get a 10 year ban, I.e. she can reapply after 10 years of having been lawfully in the UK. Possibly a typo?

Posted: **Wed Sep 06, 2017 8:21 am**

"Residence requirements: 6(2)
The residence requirements which someone applying under section 6(2) of the
British Nationality Act 1981 are that the applicant was:
• in the UK at the beginning of the period of 3 years ending with the date of
application
• not absent from the UK for more than either:
o 270 in that 3 year period
o 90 days in the period of 12 months ending with the date of application
• not, on the date of the application subject under the immigration laws to any
restriction on the period of stay in the UK
Page 14 of 41 Published for Home Office staff on 14 July 2017
• not, at any time in the period of 3 years ending with the date of application in
breach of immigration laws"

under above clause when applying under section 6(2), the applicant needs be in not breach of immigration law for only 3 years.

also interms of Breach of immigration law for qualifying period is defined the HO document as follows:
Breaches of immigration law in the qualifying period
This section tells you who is in breach of the immigration laws and when to exercise
discretion over periods of breach.
‘Breach of the immigration laws’ for the purpose of the residence requirements refers
only to unlawful residence. It does not include contravening immigration law in any
other way, but this is considered as part of the good character requirement.
People who are lawfully resident in the UK
The following people are not in breach of immigration laws:
• people with right of abode in the UK
• people with leave to enter of remain
• citizens of the Republic of Ireland who last arrived in the UK on a local journey
from the Republic of Ireland
• people who are entitled to reside in the UK without leave under EEA regulations
• crew of ships or aircraft
• people who are exempt from immigration control
• people who have disembarked at a UK port but are still in the immigration
control area or have been detained or given temporary admission

my wife had temporary admission given by HO till they issued her "Private and Family Life Visa" and then she got ILR. according to the above definition, she is not in breach of immigration law in her qualifying period, am I correct?

Posted: **Wed Sep 06, 2017 10:37 am**

secret.simon wrote: ↑
Wed Sep 06, 2017 1:58 am

Hstepper07 wrote: ↑
Wed Sep 06, 2017 12:43 am
From my understanding, discretion can be applied if the person had made a late application for leave to remain which was subsequently granted and either the application was not submitted more than 28 days after the expiry of their previous leave and before 31 October 2016. The application was made a day after leave expired but within 28 days.
Correct. But that does not apply in this case because the subsequent "late" application was not granted. It was a much later application well outside the 28 days that was granted.

As I see it, the OP's wife does not meet either bulletpoint 2 or 3 below.

Page 27 of Nationality policy: Naturalisation as a British citizen by discretion wrote:You must only exercise discretion to disregard a period of unlawful residence if there are reasons for this which were clearly outside the applicant’s control, or if the breach was genuinely inadvertent and short.

Examples of when you might exercise discretion include where:

• the breach occurred at a time when the applicant was a minor whose parents failed to obtain or renew their leave • the applicant was a victim of domestic violence whose abusive partner prevented the renewal of leave
• the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach
- this is 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 and before 31 October 2016
• the person had made a late application for leave to remain which was subsequently granted and either the:
- application was not submitted more than 28 days after the expiry of their previous leave and before 31 October 2016
- application was not submitted after more than 28 days overstaying if it was an asylum application
- person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or bereavement o period of overstaying ended on or after 31 October 2016 and leave was granted in accordance with paragraph 39E of the Immigration Rules
• the person arrived the UK clandestinely but either presented themself without delay to the immigration authorities or was detected by the immigration authorities shortly after arrival: o the maximum period involved should normally be 1 month, but may be longer if there are extenuating circumstances o in these cases you can waive the breach that occurred from entry until the person’s first application for leave or asylum was determined, provided the application was granted
• an application for asylum or leave to remain was refused but was later acknowledged to be an incorrect decision and the appropriate leave was granted

You must not exercise discretion to disregard a period of unlawful residence in any other circumstances, and particularly not when the breach was both substantial and deliberate.

kasi wrote: ↑
Mon Sep 04, 2017 1:20 pm
then why HO said in the letter that she can apply after 14-02-20? if the condition is for 10 years?

" I should point out that an application made before 14/02/20"
This puzzles me too. I would have thought she would get a 10 year ban, I.e. she can reapply after 10 years of having been lawfully in the UK. Possibly a typo?

Ok. I assumed it was subsequently granted. That means that even though she was granted temporary admission, it was following a breach of immigration law as an overstayer.

Posted: **Thu Sep 07, 2017 9:38 am**

I don't disagree on the breach of immigration but the point I am making is that the breach of immigration accrued was out of our control. We have applied with in 28-days of visa expired i.e. after a day and HO took the money out from my account but then send us the forms back after 24-days saying that the I have used old application form. I applied again using new forms but than 28 days passed due to which her ILR application was rejected. Till she got her other visa, we were fighting in court and HO was aware of her location and have granted her temporary admission.
my point is that this breach does not count when applying for citizenship according to the breach definition and discretion should be applied under this case. Am I correct on this?

Posted: **Thu Sep 07, 2017 10:04 am**

I don't think you are correct. She had a period of no valid leave, submitted an out of time application which was refused. She had no Section 3C protection.

Discretion is exactly that, discretion. HO do not have to apply discretion at all, they have a right to decide.

We have applied with in 28-days of visa expired

This would be overlooked for ILR but not for citizenship.

You should not confuse the Immigration Rules with the Citizenship Laws, they are two completely separate things. One might be acceptable or overlooked in immigration rules terms, is unlikely to be overlooked in citizenship application aspects.

The citizenship good character requirements are clear on periods of overstay.

Posted: **Thu Sep 14, 2017 10:42 am**

so does it means that she can apply for citizenship once her 3 years qualifying period becomes immigration breach less?

Posted: **Mon Oct 30, 2017 1:47 pm**

Hi All,

just for the information for all that I have received confirmation from HO in written that my wife only needs to be present in the country for the last 3 years without breach of immigration law before she applies for Citizenship. so this will mean that she can apply in 2019 as she acquired Private life visa on 2016 and in 2017 she got ILR.

Thanks for all your help in this matter.

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