Naturalisation Query

[penhill35]

Hello,

Quick question, I hope.

When an ILR is submitted and the HO takes 2 years to make their decision; is this period of time that they have taken considered as being 'legally' present in the UK?

I have received my ILR recently and wanted to know if I could apply for British Citizenship. I have been in the UK for 5 years (arrived 2005); although during 8 months of this time I was an overstayer.

I should mention that I am married to a British Citizen and entered under a marriage visa.

Many thanks for any help!

[BLK235]

During what period were you an overstayer?

Were you overstayer at the time you filed application for ILR?

[penhill35]

Hello,

Yes, I was an overstayer when I applied for the ILR, but to clarify I did enter the UK under a marriage visa in March 2005, this visa expired because of a misunderstanding. I made the application for the ILR in December of 2007 and waited for nearly 2 years for the HO decision.

If you need further information, please let me know.

With kind regards.

[BLK235]

First of all I'm not a registered OISC immigration advisor or solicitor so take whatever I say with a pinch of salt.

According to Annex B of British Nationality Act 1981 - caseworking instructions there is some discretion with regards to breach of the immigration laws

8.10 We should normally exercise discretion to disregard a breach of the immigration laws if:

• the breach was for a period of less than 6 months, and it was inadvertent (e.g. the applicant genuinely forgot to ask for an extension of stay or indefinite leave to remain) If the breach was longer than 6 months and the applicant claims that this was a genuine oversight we should expect there to be compelling reasons for the oversight, such as a family illness or bereavement; or
...

I have to say in your case it's really pushing it. Especially considering the cost of application (in case of refusal you only get refunded cost of citizenship ceremony, which is something around eighty pounds).

You probably need to seek advise of good immigration advisor or wait till you meet residentional requirements.

[penhill35]

Thank you for the information. I think I will just wait and not take any chances.

Many thanks and Happy New Year!