Chance of good character requirement discretion for a previous over stayer and her daughters?

[Cafm1992]

Hello all,

Firstly I would like to say that this site has proved to be immensely helpful over the last few years, it is full of the experiences and knowledge of some extremely helpful individuals and I would like to thank all who post on this site for your help.

Thank you in advance for any help regarding the below issue.

I am looking for any information or experience regarding the good character requirement discretion.
My partner, her middle sister and her mother will have completed 12 months of ILR in September this year, following 6 years of discretionary leave.

The youngest sister was granted citizenship in Nov 2017 at the age of 15 on the grounds that she was born in the UK and lived here until the age of ten.

They have all been resident in the UK since 1998 and would all like to apply for citizenship in September this year but there are some issues.

The back story is; In Feb 2011, the mother was caught working in a café during an immigration raid. She had overstayed her visitor’s visa which expired in 2006. At this point in 2011 my partner had been 18 for four months and in her second year of A-Levels. Her middle sister was under 18 and doing her GCSE’s.

Following the raid, the mother was told to make an application for leave to remain as a matter of urgency and an application for indefinite leave to remain was made, with the father as the main applicant and the mother and 3 children as dependents. This resulted in a grant of discretionary leave in July 2011, an extension was granted in 2014 and ILR was granted in 2017.

The youngest sister was granted British Citizenship in November 2017 on the grounds that she was born in the UK and had lived here until the age of 10.

My main questions regarding an application this year are:

• How likely is the mother to be shown discretion by the HO as she was caught working and overstaying less than 10 years prior to an application for citizenship?
• As my partner was 18 and not technically a minor when her mother was caught overstaying (albeit by 4 months) does this technically count as an offence and subject to the 10 year rule? At this point she was totally dependent on her parents, the situation was totally out of her control, and the original leave to remain application was made with her as a dependent.

Thank you for any help.

[CR001]

They will likely only qualify for citizenship 10 years from the date that they were first granted DLR, i.e. July 2021.

[Cafm1992]

Hi, thank you for your reply CR001.

I feel that that section of the good character requirement most definitely applies to the mother and that she should wait until the 10 years have elapsed.

I also agree the safest course of action would be for all family members to wait out the 10 years.

For my partner, I feel that she may be eligible for discretion. The reasons being that:
• From 2006 until November 2011 she was legally a minor.
• From November 2010 until the grant of DLR in July 2011 she was over 18, but fully dependent on her parents.
• Even if she was aware of her immigration status and the issues, she was an A-Level student and did not have the financial recourse or links to her native country to return or to file her own HO application.

Given the above points a feel that there must be a chance of the HO to waive the good character requirement as it was her only breach and was out of her control.

Checking throught the HO docuements, page 26 of the 'Nationality policy: naturalisation as a British citizen by discretion' it states that

"There is some discretion to disregard breaches of the immigration laws (unlawful residence) during the qualifying period. Such breaches only involve being here without leave to enter or remain. Other immigration offences, such as breaching a
restriction on taking employment and harbouring other immigration offenders, should not be considered under the residence requirement, but under the good character requirement."

And then:
"You must only exercise discretion to disregard a period of unlawful residence if there are reasons for this which were clearly outside the applicant’s control, or if the breach was genuinely inadvertent and short.

Examples of when you might exercise discretion include where:
•the breach occurred at a time when the applicant was a minor whose parents failed to obtain or renew their leave
•the applicant was a victim of domestic violence whose abusive partner prevented the renewal of leave
•the applicant had made an ‘
in-time’ application, but the application was rejected and so they became in breach
o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection and before 24 November 2016"

Which kind of gives me hope. Does anyone have any experience with such discretion being granted?

[CR001]

Your risk if you want to apply but if refused, you lose the fee. Personally, I would wait another 3 years and then apply.

[Cafm1992]

Hello,

This is just a quick update on my previous posts in the hope that it may help anyone who perhaps is in a similar situation and circumstances.

We decided to go to see a solicitor in the hope that they had dealt with a similar situation and luckily they had. He explained that my partner’s sister was ok as she was under 18 when their stay was legalised and emphasised that for my partner there was an element of risk of refusal, but he was confident that there was a good chance of acceptance.

He gave us some pointers of additional information to provide alongside the application so we provided:

1. Letter from parents, explaining that overstaying was their fault and that they fully supported my partner even after the age of 18.
2. School reports to show that she attended school during the overstay and A-Levels after the age of 18 and did not work during that time.
3. Good character references from:
a. Employer
b. Volunteering agency
c. Me (her partner as we live together)
4. Proof of home ownership in UK, mortgage and council tax.
5. A cover letter which explained that she is aware the over stay could cast doubt on her good character, but that she has proved she is of good character and will be a good citizen through her work, lack of criminality and points on her license, her volunteering, her studies, character references etc. She also explained why it is important for her to become a citizen.

We provided all of this and applied on 25th September 2018 and on the 9th November 2018, my partner and her sister received their approval and invitations to their ceremony.

Thank you again to all who post on this forum and thank you CR001 again, for taking the time to respond to my previous posts.

[Sultan786]

Cafm1992 Can you tell me which solicitor he was please

[Casa]

Cafm1992 Can you tell me which solicitor he was please

Under the Board Ts&Cs. members are not permitted to post professional contact details or recommendations on the open forum.

[Sultan786]

How would I get there details

[Sultan786]

Cafm1992 How would I get that information then

[Casa]

Cafm1992 How would I get that information then

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