Need members thought on this issue

[Tier1Gen]

Hi Members,
I was planning to apply for my BC next month and came across the new changes in effect for naturalisation.

9.7 Evasion of immigration control
The decision maker will normally refuse an application if within the 10 years
preceding the application the person has not been compliant with immigration
requirements, including but not limited to having:
a. failed to report
b. failed to comply with any conditions imposed under the Immigration Acts
c. been detected working in the UK without permission

My problem is that back in 2008 I applied for HSMP before the expiry of my visa, Due to some issue with the payment. Home office returned my application due to non-payment after the expiry of my visa.

Even though the visa was expired, but it was mentioned in the letter (from HO) that If I wish I can resubmit a new application, which was later refused and I left UK within 28 days.

I would be happy if any senior can comment on this, if it will be considered breach of Immigration Act. As my initial application was made within time but I have no clue why HO was unable to get the payment.

Please see the document attached.

20150211_224731.jpg (1.38 MiB) Viewed 1777 times

Regards,

[fwd079]

Personally I think you have overstayed, and this can hamper your chances, but I would strongly recommend consulting a lawyer for any further details/steps.

[Tier1Gen]

Thanks fwd079 for you advice.

I did contact one of the OISC this morning, explained the scenario to them.

What he told me was that,

"what you have described should not be the ground for refusal as caseworker has to look at all the facts of the case and there was no intention to deceive on your part. As the intent was clear and initial application was in time, though due to payment failure this issue happened."

I will try to get few more opinions and will decide what to do.

I would appreciate if any member who has experienced similar scenario to share their experience.

[fwd079]

Thanks fwd079 for you advice.

I did contact one of the OISC this morning, explained the scenario to them.

What he told me was that,

"what you have described should not be the ground for refusal as caseworker has to look at all the facts of the case and there was no intention to deceive on your part. As the intent was clear and initial application was in time, though due to payment failure this issue happened."

I will try to get few more opinions and will decide what to do.

I would appreciate if any member who has experienced similar scenario to share their experience.

No problem, did you get any more opinions or have you made any decisions yet?

[Tier1Gen]

Hi Fwd079,
I've spoken to afew OISC consultants and also taken further advice from Naturalisation help centre.

I was told that point 9.7 has different interpretation. If I would have gone underground or would have tried to hide from the Home Office then I could have been effected by this point.

In my case I have a clear history, In that particular situation I could not have done nothing as its a procedural issue and Home Office is aware of the situation.

In short I would be applying next month.


Regards,

[fwd079]

Brilliant, thanks for coming back with reply. Good luck.

[vinny]

The burden is on the Secretary of State to demonstrate that your application was indeed invalid.

[Tier1Gen]

@Vinny Thanks alot for pointing me to invalid application post.

@Fwd079 Thanks for your good wishes.

Will keep the forum posted with the progress.

Regards,

[ManB]

Hi Tier1gen,

I am in a very similar situation regarding prior invalid application and also wanting to apply for naturalisation soon.

Thanks for offering to keep the forum posted on your progress as I am keen to know how you get on. Please do share your experience and learnings here as it would be very helpful indeed.

Best of luck and I hope it all goes well for you.

[Tier1Gen]

@ManB I think the sticky post for British Citizenship – Good Character Requirement FAQs Updated by @Zee83 has clarified our issue [Point 8.10]

I would appreciate if Seniors could confirm this.

Regards

[cs95tdg]

@tier1Gen, having read point 8.10 I'd agree that it does appear to provide clearer guidance to caseworkers (by providing examples) on where to exercise discretion when it comes to instances where the breach was clearly outside the control of the applicant, short & unintentional.

[ManB]

@Tier1Gen,

Thank you very much for directing me to the post by Zee83, it very helpful indeed.

I agree that clause 8.10 seems to clarify discretion for people with prior invalid applications; as covers the fact that these situations are often unintentional, outside the control of the applicant and not willful or delibrate breaches. I hope this can serve to demonstrate good character requirements. I would be grateful for the views of seniors, moderators and other members of the forum.

Tier1Gen, please are you able to share whether you will be applying now on this basis, or consulting solicitors etc. I am due to apply next month and trying to understand if and how best to proceed.

Thanks again.

[Tier1Gen]

@Cs95tdg Thanks for your thoughts on the updated guidance.

@ManB I would suggest that you do consult OISC consultants and also check with the naturalisation customer support.
Even though I've already checked this with quite afew consultants, I would appreciate if you can contact afew and share their
thoughts here.

[ManB]

@Tier1Gen,

Thanks for your reply.

I am also making enquiries and will keep you posted with any feedback I get.

Best Regards,

[ManB]

@Tier1gen,

Hi,I hope your application plans are going well. I thought I should share some of my findings with you.

I have spoken with two immigration advisors and have got different views.One is of the opinion that I should apply, explaining the situation and see what the outcome is. If unfavourable consider re-consideration citing relevant factors and guidance. Whilst the other thought the duration between invalid applications was an overstay i.e. in breach of immigration rules.