Citizenship Refused - Was I staying unlawful?

[Ojey]

Hi Seniors,

I have a question regarding my refused naturalisation application, hope I can get some good advise:
I been on student visa for 9 years and 8 months, then applied for leave to remain under private life, for which I got refused on 25th June 2014 and appealed the decision, I withdrew the appeal after completing the 10 years and applied straight away for settlement ILR (my visa had expired during the private life application). I was granted my ILR in January 2015, and applied for naturalisation in April 2016 for which I got refused withe the following reason:

"you were in the UK in breach of the immigration laws from 25th June2014, when your leave application was refused for an in-time application to 14th January 2015 when you were granted settlement."

Having an application under consideration while submitted within the 28 days grace period constitute a breach of the immigration laws?
Should I go with a reconsideration?
Are there any grounds I could go for?
Thanks in advance for your reply.

[CR001]

By withdrawing your appeal, your section 3C cover will have ceased. You submitted an application when you therefore had no cover and had no valid leave. So yes, for roughly 6 months, you had no status in the UK.

[Ojey]

Thanks for your reply.

Should I go for a reconsideration or would it be a waste of money?

[Ojey]

Also, having applied for settlement in less than 28 days after withdrawal of the appeal, and the application been subsequently granted, wouldnt call for discretion to be applied according to pragraph 8.10 of the staff guidance --> https://www.gov.uk/government/uploads/s ... r_18_B.pdf

[noajthan]

Thanks for your reply.

Should I go for a reconsideration or would it be a waste of money?

Reconsideration is to address procedural and admin type errors on part of HO.
Its not clear the HO caseworker has made any in this case.

[Zaidii]

@ CR001, Noajthan

Are you saying that OP was granted ILR in error if he was in breach of immigration law by overstayin?
Or the implication of 3C is different when you apply for naturalization?
Thanks

[CR001]

@ CR001, Noajthan

Are you saying that OP was granted ILR in error if he was in breach of immigration law by overstayin?
Or the implication of 3C is different when you apply for naturalization?
Thanks

The OP had no visa status between 25th June 2014 and 14 Jan 2015. Having withdrawn their appeal based on private/family life, their section 3C cover ended.

No one said that ILR was granted in error so not sure how you came to that conclusion as an option.

[cs95tdg]

Also, having applied for settlement in less than 28 days after withdrawal of the appeal, and the application been subsequently granted, wouldnt call for discretion to be applied according to pragraph 8.10 of the staff guidance --> https://www.gov.uk/government/uploads/s ... r_18_B.pdf

That's an interesting question. I'm not entirely sure that the descretion bullet point you are referring to, would apply to circumstances such as this, when an in progress appeal is withdrawn. But at the same time, it's not absolutely clear - as it does refer to late applications within 28 days. The nature of discretion however is that it's not absolute or definitive! Assessment and grants of citizenship are also not the same as visa/settlement applications. Good character criteria is much more stringent.

I see what CR001 is saying, that technically your leave extension by virtue of section 3c would have lapsed on the date you withdrew the appeal. As your ILR application was made within 28 days of that date, the overstay was disregarded for that application & had no adverse effect on it.

[Obie]

By withdrawing your appeal, your section 3C cover will have ceased. You submitted an application when you therefore had no cover and had no valid leave. So yes, for roughly 6 months, you had no status in the UK.

I think the refusal was clearly wrong, any overstaying under 28 days is ignored for the purpose of the Immigration Rules. Therefore it cannot be said, that the OP was in breach of immigration rules.

OP was not in breach of immigration rules. The overstaying seems to be within a permissible level permitted by law..

[secret.simon]

By withdrawing your appeal, your section 3C cover will have ceased. You submitted an application when you therefore had no cover and had no valid leave. So yes, for roughly 6 months, you had no status in the UK.

I think the refusal was clearly wrong, any overstaying under 28 days is ignored for the purpose of the Immigration Rules. Therefore it cannot be said, that the OP was in breach of immigration rules.

OP was not in breach of immigration rules. The overstaying seems to be within a permissible level permitted by law.

Different ways to argue that. It could be argued that overstay of less than 28 days is ignored only for the purposes of applications under the Immigration Rules and not for applications made under any other law.

Besides, even an overstay of however short a duration, even under 28 days, is undeniably an overstay.

[secret.simon]

I been on student visa for 9 years and 8 months, then applied for leave to remain under private life, for which I got refused on 25th June 2014 and appealed the decision, I withdrew the appeal after completing the 10 years and applied straight away for settlement ILR (my visa had expired during the private life application). I was granted my ILR in January 2015, and applied for naturalisation in April 2016 for which I got refused withe the following reason:

"you were in the UK in breach of the immigration laws from 25th June2014, when your leave application was refused for an in-time application to 14th January 2015 when you were granted settlement."

It seems to me that the Home Office is not recognising the appeal you filed against the FLR(FP) rejection as constituting Section 3C leave.

How did you appeal the decision? Was it an appeal or Administrative Review that you applied for? In which tribunal was the appeal when you withdrew it?

[Obie]

Well needless to say that I disagree.

Parliament has stated that any overstaying for 28 days must be ignored, and it does not breach long residence.


The question here is whether a person in this position can be considered as a person of bad character, when parliament has ruled that for the purpose of Long Residence, an overstay of under 28 days must be ignored. Provided a person complies with this, his or her presence in the UK was not in breach of immigration law.

There is a reason for the insertion of that provision in the rule , and the provision will be otiose if the Secretary of State can use a policy which was not place in parliament to undermine it's effect.

That will not stand up in court.

[cs95tdg]

Different ways to argue that. It could be argued that overstay of less than 28 days is ignored only for the purposes of applications under the Immigration Rules and not for applications made under any other law.

I think the point that the OP was considering was the following under the nationality guidance on discretion. Point 8.10

Also, having applied for settlement in less than 28 days after withdrawal of the appeal, and the application been subsequently granted, wouldnt call for discretion to be applied according to pragraph 8.10 of the staff guidance --> https://www.gov.uk/government/uploads/s ... r_18_B.pdf

the breach arose as a result of a late application for leave to remain where the application was submitted no more than 28 days late (or in the case of an asylum application was submitted after no more than 28 days overstaying) and was subsequently granted.

[secret.simon]

There is a reason for the insertion of that provision in the rule , and the provision will be otiose if the Secretary of State can use a policy which was not place in parliament to undermine it's effect

The provisions of one law can be made redundant or otiose by the application of another law. The 3 year naturalisation provision for spouses of British citizens has been rendered otiose by the five year residence requirement for ILR for those spouses. Yet, that is legal.

[secret.simon]

the breach arose as a result of a late application for leave to remain where the application was submitted no more than 28 days late (or in the case of an asylum application was submitted after no more than 28 days overstaying) and was subsequently granted.

I am aware of that. I was merely disputing Obie's interpretation that immigration law would automatically be imported into naturalisation law.

I think (beware, opinion ahead) that Obie has a background in continental European civil law, which looks primarily at the intent of the legislature in passing a law (teleological approach). I, on the other hand, rely on the English rules of statutory construction; the plain meaning, mischief and golden rules. They tend towards a narrower interpretation than the considerably broader teleological interpretations.

[Obie]

Well they are intertwined, so far as naturalisation is concerned.

If the Secretary of State by virTue of her power under section 3 (2) of the Immigration act 1971, legislate that continuous lawful residence is not broken by a period of overstaying of under 28 days, and statute prohobos a person from applying until their section 3C rights have elapsed, well it remains to be seen, how the prohibition of the statute from applying, can be held against an appellant it regards to overstaying and good character, when the individual was precluded from applying by virtue of the statute.

This was precisely one of the reasons why the 28 days in the rule was enacted and put before parliament. To prevent a person from being penalised because of a statutory prohibition.

If such person had applied, they would have had their application invalidated.

This will amount to statutory facilitated criminalisation of law abiding individual. Not sure that reads well with me.

[Obie]

Even if I was to accept the plain reading you proposed, I will still say it is clearly unlawful under public law if OP was refused on Character grounds, and I will propose that the secretary must use her discretion under section 6 (1) to issue naturalisation certification, giving the Statutory restrictions which precluded the OP from applying under paragraph 276 at a time when they became eligible to do so.

I am not sure this state of affair or situation will sit well with a competent judge.

[Ojey]

It seems to me that the Home Office is not recognising the appeal you filed against the FLR(FP) rejection as constituting Section 3C leave.

How did you appeal the decision? Was it an appeal or Administrative Review that you applied for? In which tribunal was the appeal when you withdrew it?

I am not sure how the appeal was filed, as it was done by my solicitor. It was an appeal that I applied for. The appeal was to HM Courts & Tribunals Service (immigration and Asylum First-Tier Tribunal). I have the notice of withdrawal document sent to em by the tribunal.

Could it be possible that when an appeal is withdrawn, the Home office considers it as no appeal was ever filed, effectively ending section 3C leave when the private life application was refused (cant find anywhere that says this, nor I could find anywhere where it says Section 3C ENDS when appeal is withdrawn and not before) ? Although I think if that was the case, then my ILR application wouldnt have been granted!?

I 'm really confused as I went through a solicitor just to make sure my stay was never in breach of the immigration rules! And it's not even clear what the rule is or isnt!

[secret.simon]

Could it be possible that when an appeal is withdrawn, the Home office considers it as no appeal was ever considered, effectively ending section 3C leave when the private life application was refused (cant find anywhere that says this, nor I could find anywhere where it says Section 3C ENDS when appeal is withdrawn and not before) ?

Unlikely. See Page 9 of the Section 3C/3D leave document on the Gov.UK website.

The specified application forms and procedures guidance sets out how to treat requests to withdraw applications and when withdrawal takes effect. Where an application is withdrawn section 3C leave will come to an end.

But also see Page 8.

Invalid applications
An invalid application does not extend leave under section 3C.The Court of Appeal clarified in the case of Iqbal & Others [2015] EWCA Civ 838 that section 3C leave does not apply where the application to extend or vary leave is rejected as invalid.

So, what was the basis of the rejection of the FLR(FP) application? Page 3 of the FLR(FP) guidance states the grounds for validity of an FLR(FP) application. Did your application meet all of them?

Although I think if that was the case, then my ILR application wouldnt have been granted!?

Do not confuse ILR and naturalisation. They both are under different laws and rules. Mind the gap between the two. Do not assume that if you meet the rules for one, that you automatically meet the requirements of the other. Naturalisation (as opposed to registration as a means of acquiring citizenship) is always at discretion and can be denied with reasons. The grant of ILR takes into account human rights elements, which are missing from naturalisation considerations.

the secretary must use her discretion under section 6 (1)

Not much of discretion if it must be exercised. Unless you mean that she must consider exercising it (even if she eventually decides not to, after reflecting on all details of the case).

[Obie]

I think Simon you are the one that is getting confused.

OP was refused because they said he was in breach of immigration law. That is what schedule 1 says. Therefore we are automatically taken to the 1971 act and by virtue of Section 3(2) of that act, to the immigration rules, to see if OP has been in breach of immigration law.

It is important to note that schedule 1 of the 1981 act did not say continuous leave, but rather breach of immigration law.

So a refugee who has applied for asylum and was subsequently granted, after 3 years, will not be in breach of immigration law, as he had a case pending.

Also a person who could have applied for settlement had it not been for the restrictions placed upon them, will in theory not have been in the UK in breach of immigration law, provided he or she makes an application before 28 days of her leave expiring.

In my opinion there is no discretion . "Breach of immigration law" has to be read consistently with section 3 (2) and the restrictions placed in section 3C.

Breach of immigration law in criminal law is a crime, and it will be absurd to say that the Secretary of State is facilitating crime by using a power conferred on her by section 3 (2), in saying continuous lawful residence is not breached by an overstay of less than 28 days between the end of leave and a new application.

A person with a right of appeal cannot make a new application, following a refusal, if they have a right of appeal.




Would it not be absurd, if those people are accused of a breach of immigration law for no fault of their own.

This is the reason why there is the 28 days rule.

[riz1986]

It could be that caseworker thought that FLR(FP) application was simply made to achieve 10 yr Long residence threshold therefore OP withdrew his appeal straightaway once he accumulated 10 yr residence. So during the nationality application caseworker consider it in terms of good character requirement and use his axe to punish the OP.Just a thought !!!

[olgachilds]

Hi Seniors,

I have a question regarding my refused naturalisation application, hope I can get some good advise:
I been on student visa for 9 years and 8 months, then applied for leave to remain under private life, for which I got refused on 25th June 2014 and appealed the decision, I withdrew the appeal after completing the 10 years and applied straight away for settlement ILR (my visa had expired during the private life application). I was granted my ILR in January 2015, and applied for naturalisation in April 2016 for which I got refused withe the following reason:

"you were in the UK in breach of the immigration laws from 25th June2014, when your leave application was refused for an in-time application to 14th January 2015 when you were granted settlement."

Having an application under consideration while submitted within the 28 days grace period constitute a breach of the immigration laws?
Should I go with a reconsideration?
Are there any grounds I could go for?
Thanks in advance for your reply.

Sadly, they seem to be right.
ILR on the basis of 10 years of legal residence may be granted on a past period of time -- eg. without actual legal residence continuing.
Out of time application, even if it is of such nature that it may be granted, does not extend leave. You could MAKE it within 28 days, which is a Home Office concession - but it does not legitimise you stay during this period.
It is NOt about good character requirement -- it is about the core requirement that your stay during the qualifying 5-year period was entirely legal.

[Ojey]

Olga,

If that is the case, then what do you make of the discretion point stated on the naturalisation staff guidance for which they referred to themselves in the refusal letter:

"the breach arose as a result of a late application for leave to remain where the application was submitted no more than 28 days late (or in the case of an asylum application was submitted after no more than 28 days overstaying) and was subsequently granted."

I should be falling within this category don't I?

[secret.simon]

The point about discretion is that it is ... discretionary. They must consider applying discretion and the guidelines states the situations when it is likely to be applied. But each application for discretion must be assessed individually and if they find something adverse, they can decline to exercise discretion.

Riz1986 raises an interesting possibility of the Home Office seeing the application and then withdrawal of FLR(FP) on getting to the 10 year post as an abuse of the system and hence a reason for not applying discretion.

At the end of the day, the point about discretion is that it can be used both for and against your application. It is not a one-way street.

It may be worth applying for an SAR with the Home office. For £10, you will get a copy of all that the Home office has on record with you and you can understand the reasons as to why the Home Office caseworker thought the way s/he did.

[Obie]

I disagree that it is discretionary.

It is a question of statutory construction, of the meaning of "Breach of Immigration law" .

Even if I was to agree that you are correct, and the statute is constructed in accordance with the guidance, which is not an approach in law, I will argue that the Secretary of State has not shown that they consider the discretion conferred on them, and provided reasons why she declined to exercise it in the OP's case.

I read the 1981 act as setting out the requirements in Schedule 1 and section 6 (1) giving discretion to the Secretary of State to issue a Naturalisation Certificate under 6 (1) or 6 (2), as the case may be, in circumstances where the requirements in schedule 1 are met..