Breach? 10 Year Period

[Diesel]

Hello,

I am considering applying for citizenship through naturalisation, but have a question regarding my circumstances.

I am a Canadian citizen and left my parent's home between 2010-12 to go to university in Canada and returned to their home in the UK on an in-date limited leave to remain visa. When I applied for ILR in 2013, the original decision was a refusal based on absence grounds and removal was deemed appropriate. The refusal letter stated there was no reason I couldn't have stayed overseas since I was thought to have been living an independent life there when my studies and costs were being paid by my parents and I later returned to live with them. I appealed this decision and was subsequently granted ILR when the HO/Sec of State withdrew shortly before the hearing.

Is this something that would likely cause a problem with a naturalisation application today? I otherwise meet the criteria, but am concerned this will flag as an immigration breach/good character issue on their system as I'm still within the 10 year consideration period before applying.

Thanks

[vinny]

If you had applied for ILR in-time and was successful with your in-time appeal, then Section 3C protected you from overstaying. This should be okay with the Good character requirement.

[Diesel]

Thanks, vinny. My main concern is if having this on my immigration record would flag as a possible reason for refusal on Good Character grounds as it occurred within the 10 year consideration window if I apply now (and lead to another costly review process) and/or whether or not this actually constitutes an immigration breach.

Was my re-entry to the UK on a limited leave visa illegal after 2+ years absent even though the visa was in date and my subsequent application for ILR occurred before its expiry? I've otherwise been present since 2012 with no absences, no criminal history, employed post-ILR, etc.

[vinny]

Was my re-entry to the UK on a limited leave visa illegal after 2+ years absent even though the visa was in date and my subsequent application for ILR occurred before its expiry? I've otherwise been present since 2012 with no absences, no criminal history, employed post-ILR, etc.

Section 13

(4) Leave which does not lapse under paragraph (2) shall remain in force either indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited), but—

• (a) where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse; and
• (b) any conditions to which the leave is subject shall be suspended for such time as the holder is outside the United Kingdom.

is worrying.

[Diesel]

Would it be wiser to wait a couple of years or would those conditions likely be overlooked now since my appeal for ILR was successful despite an initial rejection for the absence?

[vinny]

Although you were granted ILR, it was before the appeal had considered the case. Did they grant ILR outside the rules?

If your Non-lapsing leave had lapsed, then Section 3C was never engaged.

For naturalisation, they may revisit the circumstances under the Good character requirement and consider that there was a breach of immigration laws at that time. If they decide not to apply discretion to disregard the breach, then they may refuse.

I agree it may be wiser to wait until at least 10 years have passed after the grant of ILR.

[Diesel]

Thanks, vinny. I briefly spoke to a solicitor this morning who is also advising I wait until the day I returned next year because I'll have been here 10 years at that point and the absence should be disregarded. Just wish I saw this post beforehand because the question now is do I calculate the 10 years based on the day I returned to the UK on a lapsed limited leave or the day I was granted ILR? There's over a year's difference between them. I'll touch base with a few other solicitors in the next couple weeks for their opinions, too.

I was granted ILR on compassionate/exceptional circumstances. I was studying abroad on a course that wasn't and isn't available in the United Kingdom, then returned almost immediately upon completion. The appeal hearing never took place: Home Office withdrew shortly before the hearing date, then I received the BRP shortly thereafter.

[vinny]

If you had returned periodically during the holidays, within a two year period, then you should have been okay.

I think it's safest to count the 10 years as starting from the grant of ILR.

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.

This includes:
• unlawful residence after the person tried to regularise their stay (except in the cases referred to above)

[Diesel]

Okay, thanks for the help. I won't put my application in now then. I didn't return at any point. I was wholly absent between 2010-12. However, reviewing the original ILR refusal letter, there's no mention of my visa lapsing as a reason for refusal. Just that I had left, so can and should be made to go back. Regardless, I'll wait.