Ancestry Visa Refusal in 14 Day grace period. Reapplying from abroad.

[kzfrancis]

Sound familiar to anyone? My brother-in-law's story:

Background

My sister's husband was born in Zimbabwe, to an English dad and Zambian mother. His parents had both his older siblings in the UK, and then moved back to Zim and had him. They are all British citizens (his mother through marriage), but there was some kind of time limit within which to get his own British citizenship from the embassy in Harare, so it didn’t get done, and he ended up with a South African passport instead.

He has worked in the UK for 8.5 out of the last 10 years, on 2 5-year ancestral visas, first as a land surveyor and then as an offshore surveyor for a firm that surveys ocean beds. The time in which he was away, he was in Cape Town with the same company as he is now, doing offshore surveying. He moved back over here in January 2012 on the same original visa which he had from 2008, and applied for another 5-year visa in 2013. Since then he has worked and lived here, married my sister, had a kid and got a mortgage.

Knowing that the 5 year visa was about to come to an end (which happened at around the time the interview was scheduled...they had finished the application forms etc in mid-February, but weren't able to organise an appointment with the Home Office until the end of March), they put in another ancestral application, this time for ILR. They could also have tried the marriage route, but were told that ancestral would be easier. Obviously as an offshore surveyor, his job requires long periods away, working for the company on offshore vessels. Most of these trips were outside of UK waters, and the decision maker assesses time spent away over the last 5 years, 180 being the max he could be out of the country. In 2013-14, he spent 188 days working offshore, and the refusal of the application hinges on this fact.

Who they’ve spoken to

They have spoken to 3 sets of professionals, all on the south coast where they live. There was a law firm, where they went for a general chat about the application. They asked them if the fact that the brother in law had worked offshore a lot would be an issue - that although he had spent very little time out of the country for leisure purposes, he often had to go offshore. The lawyer confirmed that this would not be an issue as long as his workplace provided a supporting letter, especially given the compelling fact that his actual title is 'offshore surveyor' - there is no argument for it not being necessary for him to go offshore, when it’s actually in his job title.

Then, once they had done the application, they sent it through to a private immigration consultant. He had 48 hours to review all the paperwork that was being submitted, and he said this was all fine, didn’t flag up any issues regarding the offshore calculations, and so they then organised a date for the interview.

He has since spoken to a lawyer in Worthing, more on that in a minute. He gave advice on the matter and has since completely changed his story as well.

The decision

At the end of March when he went for his interview, they kept him in all day and then eventually said that it was 'at their discretion' whether to grant him ILR, and they were not satisfied that he had been in the country enough in 2013-14. They have his passport and all his documents, and have issued him with a letter saying that he has the right to administrative review (but there is no right to appeal). He can either put in another application, go through administrative review or leave.

Given their limited options, they decided (at the third lawyer's advice) 'to submit another temporary visa within the 14 days (at their own considerable expense - this has really added up to a lot over the last year). Then in 6 months' time they could make another ILR attempt because by then the 188 day period would have been more than 5 years ago. The lawyer wrote a letter to his work stating his agreement with this course of action, and said he could see no issues with him being able to work while the 5 year visa was processed, as he'd submitted it within the 14-day period.

They did this, and he went back to work - but then his work started asking for proof that he had actually put in his application - proof from the Home Office. At first they thought they could get no response from them - then they finally did get a response by email today, and the response said that as the second application had gone in after his last temporary visa expired, he is technically an overstayer, and he has been suspended without pay again - this time potentially for up to 4 weeks. When my sister went back to the third lawyer to inform him of this, the lawyer suddenly changed his tune and said that maybe he wasn't legally able to work.

Every single 'expert' they have spoken to has given them dud advice - does anyone have any clue what they can do next??? Barrister? Appeal? What? Is it possible that the 14 day grace period only applied to another ILR application, and not the visa app, which is why the Hme Office viewed them as two unrelated things? It is extremely hard to navigate.

[zimba]

I do not understand what does 'temporary visa' even mean in your story (FLR ??!) but the moment any new application is put forward within that 14 days, the section 3C cover comes to an end and the person becomes an overstayer. Therefore he has no right to work unless the pending application is eventually granted. This is an obvious fact and should be common knowledge to any lawyer/expert worth his/her salt.

[cyclina1]

unfortunately a lot of immigration law firms in the UK cheat some naive money and the director just closed the firm when the reputation spoiled and open the new one with new name, and, cheat again.

[kzfrancis]

I do not understand what does 'temporary visa' even mean in your story (FLR ??!) but the moment any new application is put forward within that 14 days, the section 3C cover comes to an end and the person becomes an overstayer. Therefore he has no right to work unless the pending application is eventually granted. This is an obvious fact and should be common knowledge to any lawyer/expert worth his/her salt.

I am really not well-versed in this stuff - sorry. By temporary visa, I mean 5 year ancestry visa. As opposed to ILR where he won't have to keep applying every 5 years.

Right, so the deal is that he should never have had advice that said he could carry on working, because the fact that the interview for ILR came right at the end of his previous 5 year visa would have always meant that a rejection would lead to him being an overstayer.

Can't believe how much they have been messed around with all this. Any advice over what to do next??

[kzfrancis]

I think there are many immigration experts on this forum. I'd really appreciate it if someone could offer advice on what to do next in this case. Is it really just a case of waiting (suspended and unpaid) and hoping that the visa application goes through?

[zimba]

The ancestry visa has to either be approved before he is eligible for ILR or he can vary that application to ILR if the application is still pending when he becomes eligible. In the meantime he cannot work unfortunately

[kzfrancis]

The ancestry visa has to either be approved before he is eligible for ILR or he can vary that application to ILR if the application is still pending when he becomes eligible. In the meantime he cannot work unfortunately

Thanks - and I suppose there's no point in asking how long that might take? How long is a piece of string? I can't believe three separate people have given him dud advice. Do you think writing to an MP, writing to a paper are worthwhile routes? Would a barrister be able to do anything differently? They're not millionaires though, and have used up the majority of their savings on repeated applications.

[zimba]

Unfortunately they can only wait to hear back. It could takes several months

[kzfrancis]

Thanks. I don't understand what they expect a small family with a mortgage and a wife on maternity leave, to live on, if they don't allow him to work. I don't even understand why he isn't allowed to have citizenship off the back of his son, wife, parents and siblings all being citizens. I know other people over here who have citizenship for much less.

[CR001]

Where was his father born (zim or UK)?

[kzfrancis]

Where was his father born (zim or UK)?

In the UK. I believe he moved to Zim as a teenager, and then was back in the UK for a few years as an adult, and then back to Zim again for 20 or so years, and back to the UK again about 7 years ago.

[CR001]

If his father was born in the UK to British parents, then your BiL is automatically British by Descent and can apply for a passport directly.

[CR001]

Not sure why none of the 'experts' never raised this issue or why he got an Ancestry visa instead of a passport.

[CR001]

Were his parents married?

[kzfrancis]

Not sure why none of the 'experts' never raised this issue or why he got an Ancestry visa instead of a passport.

I know! I've been trying to get to the bottom of this for ages! I have to look into whether his parents' parents are British, but as far as I know they are!

I've been told that his mother had some kind of limited window of time within which to register him with some sort of travelling ambassador in Zim before he turned one...but I don't understand why, because whether that was done or not, I he should be eligible? I can get dual nationality in Ireland because my grandmother was Irish, for goodness sake - yet he is having all this trouble even though his father is English?

[CR001]

I've been told that his mother had some kind of limited window of time within which to register him with some sort of travelling ambassador in Zim before he turned one.

Only relevant for him to be British otherwise than by descent.

If his parents were married at the time of his birth or anytime after his birth before he turned 18, he is automatically British because his father was UK born and likely British otherwise than descent (i.e. can pass his citizenship on) as only males were able to pass citizenship on automatically prior to 1st January 1983. There was and is NO need to have registered the child at the British embassy within 12 months of birth to claim citizenship by descent.

Really important to know if his parents were married or not at any time.

Also if they were not, there is another route for him to take IF his father is named on his birth cert, which presumably he is as your BiL was successful with an Ancestry visa.

[kzfrancis]

I've been told that his mother had some kind of limited window of time within which to register him with some sort of travelling ambassador in Zim before he turned one.

Only relevant for him to be British otherwise than by descent.

If his parents were married at the time of his birth or anytime after his birth before he turned 18, he is automatically British because his father was UK born and likely British otherwise than descent (i.e. can pass his citizenship on) as only males were able to pass citizenship on automatically prior to 1st January 1983. There was and is NO need to have registered the child at the British embassy within 12 months of birth to claim citizenship by descent.

Really important to know if his parents were married or not at any time.

Also if they were not, there is another route for him to take IF his father is named on his birth cert, which presumably he is as your BiL was successful with an Ancestry visa.

Thank you - finding out more right now - what you're saying is totally in line with what I've been saying, and not sure why this hasn't been looked into.

[CR001]

Get the additional info and then we can advise further. Sooner rather than later to help him.

[kzfrancis]

Get the additional info and then we can advise further. Sooner rather than later to help him.

Thank you! As keeps happening, it's more complicated than I thought. His father was born in Bulawayo to British parents. So he got his citizenship by descent, his wife got hers through marriage to him, and his first two kids got citizenship through being born in the UK. I guess this makes a difference to what you were saying . Any remaining options, do you think?

[kzfrancis]

Hi, still trying to get to the bottom of what could happen here. The responses cut off after I confirmed that his dad got his visa through descent, fair enough.

Now my question is whether you think there is a strong likelihood that his 5-year visa will come through with no issues in about a month's time...or whether the fact that he has now overstayed may count against him? And if it does...what is next? Is it immediate exit? Does this happen often? Any recourse? I have written to a barrister about getting Counsel's Opinion...is this a waste of time, or useful if the visa is refused?

[CR001]

Hi, still trying to get to the bottom of what could happen here. The responses cut off after I confirmed that his dad got his visa through descent, fair enough.

We are all unpaid volunteers. It is difficult to offer advice via a third party and usually it is better for the person concerned to post themselves as they know their circumstances the best. For example, in your first post you mentioned an interview and applying ILR after this. Not sure what is meant by this.

Now my question is whether you think there is a strong likelihood that his 5-year visa will come through with no issues in about a month's time...or whether the fact that he has now overstayed may count against him? And if it does...what is next? Is it immediate exit? Does this happen often? Any recourse? I have written to a barrister about getting Counsel's Opinion...is this a waste of time, or useful if the visa is refused?

If he submitted an application with the required 14 day period, then he will have to wait for the outcome, which could be quick but it could take a couple of months. Yes it does happen often enough and HO has always been very clear that it is the applicants responsibility to make sure they meet the requirements for whichever application they are making.

The period of overstay will be ignored only if his current application submitted is successful.

If it is refused, there are other options he could try, all costing more money.

A solicitor is unlikely to help as the rules are clear on absence, particularly outside of the UK waters.

[kzfrancis]

Hi, still trying to get to the bottom of what could happen here. The responses cut off after I confirmed that his dad got his visa through descent, fair enough.

We are all unpaid volunteers. It is difficult to offer advice via a third party and usually it is better for the person concerned to post themselves as they know their circumstances the best. For example, in your first post you mentioned an interview and applying ILR after this. Not sure what is meant by this.

Now my question is whether you think there is a strong likelihood that his 5-year visa will come through with no issues in about a month's time...or whether the fact that he has now overstayed may count against him? And if it does...what is next? Is it immediate exit? Does this happen often? Any recourse? I have written to a barrister about getting Counsel's Opinion...is this a waste of time, or useful if the visa is refused?

If he submitted an application with the required 14 day period, then he will have to wait for the outcome, which could be quick but it could take a couple of months. Yes it does happen often enough and HO has always been very clear that it is the applicants responsibility to make sure they meet the requirements for whichever application they are making.

The period of overstay will be ignored only if his current application submitted is successful.

If it is refused, there are other options he could try, all costing more money.

A solicitor is unlikely to help as the rules are clear on absence, particularly outside of the UK waters.

Absolutely - I wasn't complaining, but please understand that I'm trying to help too - and it's a complicated case,and something I know nothing about - so I apologise for mistakes and inconsistencies. They are not dealing with things too well right now so I don't want to ask them to take over in the postings.

With regard to the interview, I think you mean the bit in parentheses - that was an 'aside', rather than a chronological detail - an explanation for the fact that the interview for ILR came right at the end of his current visa, when ideally they would have liked to get the visa in in good time. They didn't have a choice because there was more than a 6 week wait for the interview by the time they organised it. I hope this clarifies a bit.

Thanks for your input on the other queries. The problem is that it is very hard to navigate, especially if the so called professionals don't seem to know what they are talking about. It's all very well saying the layperson needs to ensure they submit the correct information, but how does anyone know that what they are submitting is correct, if the guidance is sub-par across the board? None of us are unintelligent, but we're all finding it confusing!

[CR001]

I still don't understand what 'interview' you are referring to?? How did he apply for ILR, in person or by post??

Ancestry visa to ILR is one of the easiest and least complication routes, trust me.

[kzfrancis]

I still don't understand what 'interview' you are referring to?? How did he apply for ILR, in person or by post??

Ancestry visa to ILR is one of the easiest and least complication routes, trust me.

If it's the easiest route I don't understand how so many people still managed to give the wrong advice!

Ok sorry, wrong terminology. In person - a person sat and went through all his documents, and then refused him. Not an interview like 'what's your favourite colour', which I know they do on the marriage route. Appointment? Is that a better word?

[CR001]

In person appointment is not an 'interview' for any visa route.

I cannot comment on 'all who gave wrong advice' but in our experience based on many members posts, many immigration advisors/solicitors often get it horribly wrong even for the most simple of applications with detrimental effect.

If someone told him he can apply and not to worry about the absence, then that is clearly very wrong. What percentage of time did he spend out of the UK for the period in question that HO raised??