Entered UK after 5 years absence on ILR in expired passport, now what? Advice needed please

[ned0008]

I arrived in the UK at age 3 [in 1978] from Australia on a 'Entry Certificate/Certificate of Patriality' with 'UK grandparent' hand written on visa and line through 'Certificate of Patriality' says it's valid for 6 months [in my mother's passport but relating to me. In the next passport there is a 'certificate of right of abode' relating to myself and two brothers which was valid until passport expired. Somewhere I read that ROA was basically citizenship. When I was old enough to have my own Australian passport, I was stamped with an ILR vignette. I think I read somewhere that it's not possible to hold ROA and ILR at the same time? so possibly was given ILR by mistake? should the ROA not have been transferred to my passport from my mother's?

Anyway, in 2010 I left for an epic trip around the world with stops in various countries. I contracted an ear infection in the tropics about two years into the trip that gave me severe nausea that lasted for about two years and made air travel impossible. At about year 4 I made a full recovery and was able to travel. My brother contacted me from the UK to tell me that he had found out about a 'two year rule' relating to ILR!!! I had received my ILR many many years ago and had never heard of that rule......! needless to say I was very nervous returning to the UK, but thought border control might allow me to enter under 'paragraph 19 two year rule exceptions' length of previous residence, strong family ties etc etc.

When facing border control at Gatwick, I was not asked how long I'd been out of the UK, I just told the border clerk that I had lived in the UK since 1978 on an ILR. She asked to see the ILR in my old passport which I also carried, and let me straight in with the standard date stamp [no conditions]. My first thought was great! they've acknowledged my ILR, and I'm in with no issues. Since being back in the UK life has been good, I have found decent employment and I'm living with family members. A new secretary has turned up at work and has asked to see my proof of right to work in the UK. It used to be the case that an ILR in expired passport was fine for this purpose, but I've read that since 2014 I need a BRP card instead. I've had a look at the application for BRP and it asks for details of all absences from the UK exceeding 6 months. I am worried that my application for BRP will be rejected as I've been out of the country for so long!! but I might have had ROA all along [which from what I've read cannot be revoked]

It's a bit of a complicated situation made even more so by a simultaneous 'family of settled person' visa for my fiance [which is now on hold until I've got my residency status confirmed]

I know this is quite a complicated case, but I'd really appreciate any advice, suggestions about what I should do. For example could I just scrap the ILR and focus on proving my ROA [as it cannot be revoked]

Any information would be greatly appreciated

[Casa]

Note from the link below:
"A person who has a certificate of entitlement in an expired passport should be advised to apply for a new certificate of entitlement to be placed in their current passport before travelling."
AND
"A certificate of entitlement issued on or after 21 December 2006 may be revoked by any Home Office official (including an official in HM Passport Office), any immigration officer, any consular officer or any entry clearance officer where it is discovered that the holder is no longer eligible for it. There is no right of appeal against such a cancellation.

A certificate of entitlement (whether issued before or after 21 December 2006) will otherwise cease to have effect on the expiry of the passport or travel document to which is affixed."

https://www.gov.uk/government/publicati ... -abode-roa

[ned0008]

Many thanks for the info Casa. Obviously in the case of the ILR there is the two year rule which could invalidate the ILR. Am I right in thinking that the ROA has no time limit?

Not sure if you can see these, but the first one is the 'entry certificate' and the second the 'certificate of entitlement'
https://photos.google.com/photo/AF1QipN ... 9wINB1KpdX
https://photos.google.com/photo/AF1QipO ... N4N6KOlTNZ

Thanks again

[vinny]

A difference between a CoE-RoA and ILR is that the former doesn’t confer the status of RoA, but merely confirms it. The later does confer the status of ILR and the holder is subject to the Returning residents rules.

I believe that you are correct in saying that a person with RoA cannot be subject to grants of leave, similar to a British citizen.

If you continue to be eligible for a CoE-RoA, then apply for it again. Else, the Immigration Officer could have admitted you under paragraph 19.

[ned0008]

Many thanks for the info Vinny. I suppose I will need the assistance of a lawyer to deal with this as it's a bit of a complicated case. Do you know of any agents/solicitors etc. that would be capable of dealing with this? I'm based in Taunton, Somerset. I can get to Bristol and London easily if need be. I was looking online, there are these guys xxxxxxxx who are open on Saturday which helps as I'm usually flat out at work during the week...Although could get time off if necessary.

Moderator edit: under the Board Ts&Cs, members are not permitted to post links to commercial companies on the open forum. Call them!

[secret.simon]

Where and when were your parents born? Were their births registered with the British authorities (generally the UK Embassy or High Commission) withi a year of their birth? Did they ever carry a British passport?

[marcnath]

It seems to be there is a bit of a fallacy around an ILR expiry.
An ILR, Indefinite Leave to Remain, is exactly that - Indefinite (does not expire) and a Leave to Remain (not an entry clearance).
So, as long you remain in the UK, your ILR cannot expire.
However, once you leave the UK, you need some form of entry clearance to come back. And a Returning Resident clearance is the only one that allows you to maintain your ILR.
For example, if I leave the UK for a week and when I come back the ECO stamps me in for 90 days based on my visa waiver eligible passport, I will lose my ILR status. This is because I can't have two types of entry clearance at the same time and the latest one cancels any earlier one.
That is where the two year rule comes in - the ECO stamps you in as a returning resident if you have been out of the country for less than two years.
But the ECO also has a discretionary right to grant you clearance as a Returning Resident under SET 9.5 https://www.gov.uk/government/publicati ... nts-set-09
And if they do that, then your rights under ILR are maintained.
Long story short, I believe you shouldn't have any problems if you apply for your BRP and state the periods you were out of the country. Ensure you write in some notes or a cover letter that you were given entry as a Returning Resident under Paragraph 19/SET 9.5. As far as you are concerned, you answered the ECO's questions and was admitted. It is not your job to question the rationale or the decision. As long as you have not given false answers (and it does not look like you have), they cannot reject your BRP.
Now, I am not a lawyer, so this is my interpretation of the immigration rules.
Helps to get a professional advice, but it is more likely you will need that if, UKVI being UKVI, they do reject your BRP application.
But my personal opinion is that it will not, especially if you make it clear in your application that you are aware of the exceptions to the two year rule. Any hint that you know your stuff and are willing to fight should ensure that they make less mistakes.
Good luck and I look forward to your positive update.

[ned0008]

My father was born in Manila [as my grandfather (born in the uk, grandmother also uk born) was on overseas postings with HSBC to Shanghai, Osaka, Hong Kong, in the late 1930's WW2 was starting, he got taken as a prisoner of war and held in a Japanese camp. Before he was taken by the Japanese he managed to get his wife who was pregnant evacuated to the Philippines where my father was then born (in 1937) His birth certificate says ""Certified copy of an entry of birth within the district of the British Consul General at Manila, Philippines"" Does that mean he was 'born a British Citizen' but overseas?

[ned0008]

Many thanks for the information marcnath. I was considering trying to completely sidestep the whole ILR situation by applying for a certificate of entitlement to right of abode as I used to have this visa [clearly relating to me] in my mother's passport. From what I've read ROA is as good as citizenship and cannot be revoked [unless under extreme circumstances] Actually I'm not sure why I was given ILR at all if I already have ROA? From what you have written it seems there is a good chance I could get the BRP....do you think it would be better to go with the BRP application over the ROA application?

[vinny]

I think that RoA under 2(1)(b) requires you to satisfy either 2(1)(d) or 2(2) of the Act then in force.

I believe:
2(1)(d) requires at least one of your parents to be born in the UK or the Islands.
2(2) refers to a wife.

Unfortunately, if neither one is true, then they may have issued the CoE-RoA to you by mistake.

[marcnath]

Many thanks for the information marcnath. I was considering trying to completely sidestep the whole ILR situation by applying for a certificate of entitlement to right of abode as I used to have this visa [clearly relating to me] in my mother's passport. From what I've read ROA is as good as citizenship and cannot be revoked [unless under extreme circumstances] Actually I'm not sure why I was given ILR at all if I already have ROA? From what you have written it seems there is a good chance I could get the BRP....do you think it would be better to go with the BRP application over the ROA application?

I am less familiar with RoA but Vinny has a point and it may explain why you were given ILR if the error in issuing CoE-RoA was discovered. Also, it appears that the CoE expires with your passport (or your mother's passport, in this case), so you haven't had a valid CoE-RoA for a long time.
Did your fiance has already got 'family of settled person' visa or has UKVI put that application on hold ?

[ned0008]

I see your point guys, I think you might be right there. But I did find this on the internet relating to grandparents ""under the United Kingdom's immigration arrangements Commonwealth citizens enjoy certain advantages: Commonwealth citizens born before 1 January 1983 may by virtue of having a parent born in the United Kingdom and Islands have the right of abode therein – such persons are exempt from all immigration control.
Commonwealth citizens with a grandparent born in the United Kingdom and Islands may be admitted for up to five years on this basis, and thereafter be granted indefinite leave to remain""

[ned0008]

marcnath I've put the 'family of settled person' visa on hold as my residency status cannot be easily proven at this point in time. I've got about half way through that application in terms of time. There are still a few things that need to be completed relating to housing [property inspection report] my fiancé's ielts English exam, and a letter from my employer confirming various things. Have completed most other parts of it and supporting documents...

[ned0008]

It seems that it's possible to get ILR through grandparents, I suppose that is what has happened in my case. So it seems that I should apply for a BRP. I'm a bit concerned as I was out of the UK for several years [mostly due to the ear infection, that did not allow air travel] but quite honestly I did not know ILR was time sensitive as I had received it so many years ago, had become complacent I suppose. How do you think I should present my application? I would need to explain why I'd been out of the UK beyond two years. Should I mention the illness, or that I did not know there was a time limit on ILR? or should I say just mention that I was granted leave to enter as a returning resident? Do you think my situation is complex enough to require a lawyer to present my case? Many thanks for your help, I really appreciate it

[marcnath]

My general approach to such situations is to always state why I am right unequivocally and let authorities prove me wrong. It is better to let them do the work. Human nature is to do less work so I believe this approach works in my favour.
I am personally convinced you are here legally with a valid ILR for the reasons I have explained.
If it were me, I would just go ahead with my BRP application adding a short cover note to proactively cover off questions the CW may have.
- i have had ILR from ...
- I was out of country from ... to ...
- I faced medical issues that delayed my return
- I entered on .... as a returning resident and admitted with no conditions
- I have strong family connections here such as my brother ...
That would show I am aware of potential issues but confident enough that I am on the right and have no need to hide things. It also does the CW’s job easier in writing their own review.
That would be my approach but you need to make the call on your application

[vinny]

That’s a good approach.

[ned0008]

Many thanks guys I really appreciate your time and effort. Your insight into the psychology of the CW's makes real sense to me, and to be honest is something that I probably would not have explored enough without the help of your experience; you guys are smart! thanks again, I'll try and present my case with your thoughts in mind

[ned0008]

Guys, I've finally got round to getting this cover letter done. Would appreciate a second opinion regarding this cover letter. Is it ok??


Dear Sir/Madam,

I have included this cover letter to explain and evidence why I did not return to the UK within the two year time period usually allowed under the general conditions of Indefinite Leave to Remain.


I have been a resident of the UK since I was 3 and a half years old, [arrived Feb 1978] with family members on an entry certificate in my mother’s passport which then became ILR.

In late 2010 I embarked on a round the world trip. While travelling through the tropics I contracted an illness that resulted in several years of medical issues [chronic uncompensated labyrinthitis] that delayed my return. It took around six months to be diagnosed, and then a few years to recover through what the doctors described as ‘compensation’ as I had sustained damage to the inner ear resulting in vertigo, nausea, and dizziness. I was advised by various medical experts that I must avoid air travel until complete recovery occurred as the cabin pressure could rupture the damaged inner ear causing permanent damage to the delicate balance organ and could result in lifelong dizziness, nausea and vertigo.

I slowly made a full recovery from this illness and was able to return home to the UK on February 2016 as a returning resident under Paragraph 19/SET 9.5, and was admitted with no conditions.
I have included some of the medical tests undertaken during the diagnosis stage of my illness as evidence of the medical issues that delayed my return.



You can reach me at the following contact phone number and/or email, should you need any further information or clarification.

Yours Faithfully,
xxxxxx

Contact Details:

************
***********
*******
Phone: ***********
Email: ***********

Moderator edit: name removed to protect personal security.

[marcnath]

looks good

[vinny]

I slowly made a full recovery from this illness and was able to return home to the UK on February 2016 as a returning resident under Paragraph 19/SET 9.5, and was admitted with no conditions.

If you remember for certain you informed the Immigration Officer that you were absent for over two years and wished to be considered under paragraph 19/SET 9.5, then fine. Else, I think there's no need to reference it.

Perhaps better?

I slowly made a full recovery from this illness and was able to return home to the UK on February 2016 as a returning resident and was admitted with no conditions.

You could also mention that you continue to have strong family connections in the UK, such as, ..., etc.

[ned0008]

Many thanks guys. I've been looking at the No Time Limit application form [for BRP] and there is a section regarding criminal convictions. I was convicted of drink driving more than 20 years ago. There is no record of this on my driving license. I think I saw somewhere that I need to declare it, but can't find this information again to confirm?? thought you might know about this. Best regards, Ed

[vinny]

If the form asks about any convictions, then you should declare it.

See also burden of proof.

[Donakey111]

In the same boat and unsure of what to do. What was the outcome?

[CR001]

In the same boat and unsure of what to do. What was the outcome?

Useful to start your own topic with your circumstances and questions rather than tagging onto an old post. The user has not logged into the forum for a few months to update.