Help! ILR to Citizenship with Previous Immigration Problem

[LexJag]

Hello respected gurus and knowledgeable members,

Can any one of you help us out with this situation?

Situation

First Entry into the UK:
Student Visa expired: 30/10/2012 – Posted application via courier on 30/10/2012 but HO received it on 1/11/2012.
Application to remain in the UK refused on 9/11/2013 (This means it took 1 year to reach a decision)
Reason for refusal: Applied outside immigration rules.
Punishment: Banned from entering the UK for 12 months.
He was offered the option to make an appeal but did not go ahead.
He was required to report to the immigration centre until he received his documents and he never missed a date.
He voluntarily left the UK on 5/10/2013 after he received his documents from HO.

Second Entry into the UK:
He returned to the UK – Entry Clearance 8/11/2015 on tier 1 dependant visa
Tier 1 Dependant Visa Extension issued – 23/12/2019
ILR based on 5 years stay with no absence – 04/11/2020

His wife was granted British Citizenship on 8/01/2021

Questions:
Considering the above, his immigration predicament in 2013.

1. Is he classed as an overstayer?
2. Can he apply for British Citizenship as a spouse of a British Citizen right away?
3. Or should he apply for British Citizenship in his own right after 12 months from ILR?
4. Or should he wait till 8/11/2025?

Many thanks for your responses.

[Zerubbabel]

Hello

You don't need to wait 2025 but 2023.

They look back 10 years and they don't want to see any immigration adverse events during these past 10 years. The refusal is not always automatic. Sometimes they send you a letter asking you to clarify your position and then, they may or may not accept your application.

If you don't mind losing £1500 (application + biometrics) you can give it a go now and see what happens. But to avoid disappointment, wait 2023.

[LexJag]

Thanks for responding.

I've just got two questions :
1. Wouldn't the 28 days rule (under which applications for leave to remain were not refused on the basis of overstaying if made within 28 days of the expiry of leave) apply in his case?

2. Doesn't an entry clearance reset the immigration clock for continuous stay?

Thanks.

[LexJag]

Please gurus respond to my questions. Thanks.

[LexJag]

It's been close to 3 months, please can any guru respond to my last questions, pleaseeee.

Many thanks.

[secret.simon]

1. Wouldn't the 28 days rule (under which applications for leave to remain were not refused on the basis of overstaying if made within 28 days of the expiry of leave) apply in his case?

To the best of my knowledge, the 28 day rule only applies if the subsequent immigration application is successful.

So, if the application that they had made on 01/11/2012 been successful, the period of overstaying from 30/10/2012 to the date of grant of the subsequent LR would have been overlooked for the purposes of subsequent immigration applications. They would still have been an overstayer for that period, but that would have been overlooked.

Had they applied just a few days before, they would have been covered by Section 3C leave, but in this case, they were not.

Secondly, keep in mind that the 28 day concession applies only in case of immigration applications. Naturalisation is not an immigration application, but is made under different laws and a different set of rules. Even if the overstay were disregarded for other immigration applications, it is not at all necessary that it would be ignored for naturalisation applications.

2. Doesn't an entry clearance reset the immigration clock for continuous stay?

I am not sure I follow the question. The requirement here has got nothing to do with continuous stay. The good character requirement is looking at (among other things) whether the applicant broke any immigration laws in the UK in the past ten years. And by overstaying in the UK, they had. It has got nothing to do with continuous stay.

I concur with @Zerubbabel that they can apply for naturalisation on or after 05-Oct-2023, when their overstay in the UK ended.

[LexJag]

1. Wouldn't the 28 days rule (under which applications for leave to remain were not refused on the basis of overstaying if made within 28 days of the expiry of leave) apply in his case?

To the best of my knowledge, the 28 day rule only applies if the subsequent immigration application is successful.

So, if the application that they had made on 01/11/2012 been successful, the period of overstaying from 30/10/2012 to the date of grant of the subsequent LR would have been overlooked for the purposes of subsequent immigration applications. They would still have been an overstayer for that period, but that would have been overlooked.

Had they applied just a few days before, they would have been covered by Section 3C leave, but in this case, they were not.

Secondly, keep in mind that the 28 day concession applies only in case of immigration applications. Naturalisation is not an immigration application, but is made under different laws and a different set of rules. Even if the overstay were disregarded for other immigration applications, it is not at all necessary that it would be ignored for naturalisation applications.

2. Doesn't an entry clearance reset the immigration clock for continuous stay?

I am not sure I follow the question. The requirement here has got nothing to do with continuous stay. The good character requirement is looking at (among other things) whether the applicant broke any immigration laws in the UK in the past ten years. And by overstaying in the UK, they had. It has got nothing to do with continuous stay.

I concur with @Zerubbabel that they can apply for naturalisation on or after 05-Oct-2023, when their overstay in the UK ended.

Very many thanks secret.simon for taking this time to explain things to me in great detail. They'll wait after October 2023 to apply for naturalisation. thanks again.