ILR route on 10 years but with over stayed status previously

[kasi]

so you reckon that we should apply for her ILR?

[vinny]

196D(v) is written in the present tense. She is not presently in breach of the immigration rules. So, yes, I believe it's possible.

[kasi]

Thank you vinny for your guideline, if this workout, it will save us five years of our time and lot of trouble. I am in a process of applying for my wife now. should I go through a lawyer or shall I do it myself? I am planning to take in-person appointment so that if we have any issue on the form or any other documentation than HO can notify us on same day. what is your recommendation?

[kasi]

Hi Vinny,

I have seek an opinion from an immigration lawyer on this and she said that the HO will reject the application on the bases of 196d(v) as they will regard any immigration breach in the past to be consider an immigration breach. what shall I do? as ILR application will cost me £2375.00

[kasi]

Hi All,

I wanted to apply for my wife ILR using 196D immigration rule. she is been living with me since 2007 on spouse visa. her visa was due to renewal on 24-06-2014 but she applied on 26-06-2014 and used old forms. she overstayed her visa and her visa was refused. later on in feb-2018 she got private family life visa. she also holds ILR for EU and both our children are British. can she gets ILR now?

Many Thanks,
Sheraz

[vinny]

M.

[noajthan]

Hi All,

I wanted to apply for my wife ILR using 196D immigration rule. she is been living with me since 2007 on spouse visa. her visa was due to renewal on 24-06-2014 but she applied on 26-06-2014 and used old forms. she overstayed her visa and her visa was refused. later on in feb-2018 she got private family life visa. she also holds ILR for EU and both our children are British. can she gets ILR now?

Many Thanks,
Sheraz

Date doesn't make sense: Feb 2018?

And what is meant by ILR for EU?

[kasi]

she also holds ILR for EU but she is been living with me and couldn't apply for EU nationality as she is not been living in the EU. when her ILR got rejected in December 2014 than we went for JR and her JR was also refused so than we got private family life visa in Feb 2018.

[CR001]

There is no 'ILR for EU'. ILR is specific to the UK. The equivalent in the EU (i.e. other European countries) is PR = Permanent Residence.

[kasi]

I appreciate Vinny help in the past as he has mentioned that my wife can apply for ILR now as it's possible but I did seek an opinion from couple of immigration lawyers and they are saying that home office will take 196d(v) and will refuse the application. I need some clarification in this matter and would much appreciate help.

[kasi]

yes, Permanent Residency is correct, I do apologize for the confusion, my mistake. my wife has PR for EU but to get EU nationality, she needs to live there for atleast couple of years to apply which we as a family can't afford to do that.

[Casa]

In which EU country do you believe nationality can be obtained after only a couple of years? What is your nationality?

[kasi]

I have acquired British nationality through 5 years workpermit route. my wife been living in EU from 2000 till 2007 when she moved to UK with me on spouse visa. when she moved here, she had PR but to applied nationality, she need to be there for 10 years but as she moved to UK. she still got EU PR.

[CR001]

I personally would have waited the 3 years to apply for an EU citizenship.

Likely that PR of the EU country will be lost if she does not live in the state. PR is not forever if you don't live in the country that granted the status.

[kasi]

can't go back into past now, as I was anticipating that it would be easy for both of us to get ILR in 2014 which didn't happened for my wife for a simple mistake using old forms. I need some confirmation that using 196D, she can apply for ILR in the UK now.

[vinny]

I am not switching from her 10 year route to spouse visa 5 years but it will be 10 years for her to be in the UK in 2017 so I was thinking that can she applied ILR on 2017 based on her 10 years route.

Note that if they regard any immigration breach in the past to be considered as an immigration breach, then

E-LTRP.2.2. The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

may prevent her from ever switching to FLR(M) under the 5 year route.

Moreover, she probably doesn't satisfy the requirements for ILR under the 10 years long residence as her 10 years continuous lawful residence may be broken, failing 276B.

[kasi]

so does this mean when the HO has grant her FLR(FP) visa than they have now given her permission to switch into another visa category such as 5 year route and this also implies that she can apply for ILR as well? I hope I understood your message correctly?

[kasi]

Hi All,

I have applied for my wife ILR under 196D which was considered but refused due the ESOL B1 test was not from the approved list. however, she has passed that test in December 2014 and at that time the OFQUAL ESOL B1 was in the list and we had made one application of her ILR in December 2014 which was rejected due to her visa been expired but they HO never mentioned that the she never met the requirement for English language test.
now they have given us an oppertunity for an administrator review with in 14 days. what shall I do, is there a possibility that HO will accept any argument or will it cost us fees again?

need help please.

Thanks,
Sheraz

[CR001]

ESOL was taken off the HO approved list in November 2015.

[kasi]

It's ESOL entry 3. I remember we have applied for her ILR in December 2014 and at that time it was valid certificate and HO didn't object on that.
is it worth asking for HO review or shall we apply after doing B1 exam?

[CR001]

ESOL was taken off the HO approved list in November 2015.

Rules changed almost a full year AFTER your wife applied for ILR in 2014 and failed.

Do a new test from an HO approach ed test provider.

[WR1]

to the OP, you need to to ensure you keep up to date with the rules at the time of application as they do change often.

The ESOL test was on the list back in December 2014 but the HO changed the rules regarding English tests on 6 April 2015 but continued to except the old tests (then known as the transional list) until Nvember 2015 as long as it was taken prior to 5 April 2015. From November 2015, only the new tests are acceptable from the current SELT English tests.

[kasi]

so there is no way not to get them consider our old ESOL certificate or atleast give us 28 days to provide them with the new B1 test certificate as I have already booked the test for my wife and she will do it as she speaks very good English.

is it worth asking HO for administrative review on our application or shall I apply again with the new certificate?

[CR001]

so there is no way not to get them consider our old ESOL certificate or atleast give us 28 days to provide them with the new B1 test certificate as I have already booked the test for my wife and she will do it as she speaks very good English. No, they won't consider something that they have removed of their list. It is the applicants responsibility to make sure they submit the correct documents.

is it worth asking HO for administrative review on our application or shall I apply again with the new certificate? What error did HO make that would result in a successful AR?

[kasi]

so shall I prepare for another application and pay either £1875 or if I go for inperson than I have to pay £2375 again? will they even not consider to provide few more days to give submit the correct B1 certificate? what would you suggest?