Unsure of ILR status and in urgent need of advice on next steps

[oling]

Hi everyone,

I am writing on behalf of my girlfriend who is an Indonesian national who had ILR status granted as a dependent from the ages of 5 to 10 years old (2001-2005) when her Dad was working in the UK. For clarity, I am a British national and have lived here all my life but we are not married and haven't been living together.

Since 2005 she has returned to the UK on several occasions, believing that the ILR was indeed permanent and she has been granted entry periodically into the UK under the ILR for approximately 3-4 week stays in 2008, 2011, 2013 and then finally in 2015 until the present day for university where she has remained (going back to Indonesia/Malaysia where she is also a permanent resident during Summer/Xmas for holidays only).

She recently began a six-month internship in London and it was noted around a week in that her ILR was not stamped on a valid passport and she was advised by an immigration lawyer assigned to her that she needed to have her ILR transferred to a Biometric Residence Permit (BRP) card. However, she was informed by the lawyer that the prospect of this being successful is unlikely given the length of time she has been away and this is compounded by the fact that she was issued a visit visa in 2011 to enter the UK (however this was disregarded by the immigration officer at the time) and so her time here could be construed as overstaying. If unsuccessful, she was informed she would be forced to leave the UK.

The other option conveyed by the lawyer was that if she were to stay until 2020 without any significant breaks then she would have been here for five years and thus be able to apply for British Citizenship (I believe by naturalisation?). However, my understanding is that ILR lapses automatically after 2 consecutive years of being absent from the country so is there any way to know if this period would 'count' or could it be retrospectively deemed invalid by the immigration officer in 2020 and she still forced to leave. How can it be legal to reside in a country under ILR when it should not have been granted, yet, if you were to attempt to transfer it to a BRP, all of a sudden you would be ejected from the country? I would also love to know how this wasn't picked up on sooner by the immigration officers if she had been outside the UK for a period of more than two years on ILR on more than one occasion?

What would be the options for her now? We are now very settled and she is set on starting a career in London and very much considers the UK as her home after spending three consecutive years being educated here. Would a work visa from Indonesia to the UK be an option? I'm also curious if she had a pending work visa whether she could still visit on a tourist visa or whether the (unknowing) ILR breach could be held against her in any future visa application to the UK? Also, rather than incurring a fee of ~£800 for the in-person BRP process (which we have been led to believe is likely to result in a negative outcome) is there any other avenue to renounce your ILR and have a clean slate with which to apply in the future? Is this even advisable?

She has her BRP booked for ~ten days time with a very small window to cancel so very keen to get a sense of what our options are at this stressful time.

Regards,

Oli

[secret.simon]

Worth reading through the links in this sticky on Returning Residents and this discussion on returning residents at airports.

Applying for a BRP will clarify your girlfriend's status, but, given the prolonged absences AND the visitor visa, I concur with the immigration lawyer that it is likely that the Home Office will find that the ILR status has lapsed automatically.

Then again, a lot depends on what responses she gave to the IO each time she reentered the UK on her ILR. I think it would be wise for your girlfriend to apply for an SAR with the UKV&I to see what comments have been left on her immigration files by the IO.

[oling]

Many thanks for the thoughtful response secret simon - it is greatly appreciated. I hadn't considered an SAR with the UKV&I - my only concern there is that her hearing is in ten days' time and the HO indicate you should get the results back within a month which doesn't look like it fits with current timescales (maybe within an appeal window should there be one?). Would you advise that the absence of this information might be grounds to postpone the BRP meeting?

I've had a look at the threads you've linked and to me the indication is that it automatically lapses and is therefore invalid after the two year period yet she is certain that on the occasion she returned after a >2 year absence the IO stamped her passport on the basis of the ILR and not on the basis of the visit visa. Is an IO able to overrule the ILR guidelines and is this at all common?

And finally, if she had been let in under ILR (I suppose this could potentially be established by the SAR you mentioned, would I be correct in thinking that she would have a right to British Citizenship after five years of residency with no major absences (a criterion she would meet in 2020)?

[secret.simon]

I've had a look at the threads you've linked and to me the indication is that it automatically lapses and is therefore invalid after the two year period yet she is certain that on the occasion she returned after a >2 year absence the IO stamped her passport on the basis of the ILR and not on the basis of the visit visa. Is an IO able to overrule the ILR guidelines and is this at all common?

As I understand it (and I am neither a lawyer nor a Home Office caseworker), the way it works is that if the person (your girlfriend) can prove that she has strong links to the UK, the ILR does not automatically lapse. Therefore the suggestion for the SAR, for you and your girlfriend to see what proof of strong connection to the UK did she give the IOs when she landed in the UK in the past? We know that at least one IO was not convinced (in 2011) as s/he stamped your girlfriend in as a visitor.

And finally, if she had been let in under ILR (I suppose this could potentially be established by the SAR you mentioned, would I be correct in thinking that she would have a right to British Citizenship after five years of residency with no major absences (a criterion she would meet in 2020)?

If it is established that she has ILR, then yes, she should be eligible for naturalisation in 2020, assuming that she meets the requirements. Indeed, she can apply after three years of residence in the UK if married to a British citizen and holding valid ILR.

There may be a potential issue with the good character requirements (which requires that she not have broken any immigration rules for 10 years preceding the date of application) given that she was stamped in as a visitor in 2011. Did she carry out any activity prohibited as a visitor (working/studying)? That may be a possible sticking point.

[oling]

As I understand it (and I am neither a lawyer nor a Home Office caseworker), the way it works is that if the person (your girlfriend) can prove that she has strong links to the UK, the ILR does not automatically lapse. Therefore the suggestion for the SAR, for you and your girlfriend to see what proof of strong connection to the UK did she give the IOs when she landed in the UK in the past? We know that at least one IO was not convinced (in 2011) as s/he stamped your girlfriend in as a visitor.

I realise upon re-reading that I didn't make myself clear enough with respect to the 2011 visit. My girlfriend is certain that in 2011, although she had applied for a visit visa, this visit visa was disregarded by the IO and she was permitted entry on the basis of her ILR.

There may be a potential issue with the good character requirements (which requires that she not have broken any immigration rules for 10 years preceding the date of application) given that she was stamped in as a visitor in 2011. Did she carry out any activity prohibited as a visitor (working/studying)? That may be a possible sticking point.

For the period of 2011, she did not study nor work and was only in the UK to see family/friends. However, on returning in 2015 (where again, she was admitted entry on the basis of ILR) she studied for three years at university. Would I be correct in considering each successive arrival to the UK is a 'fresh' consideration by the IO? As in, after all of this, if she had been stamped in on the basis of ILR in 2015 and now seeks to renew having spent no more than the one or two Summer/Xmas holidays away at a time when she is still financially dependent on her parents as a student, would this would be fair grounds for continuation of the ILR?

[Stellacat]

And finally, if she had been let in under ILR (I suppose this could potentially be established by the SAR you mentioned, would I be correct in thinking that she would have a right to British Citizenship after five years of residency with no major absences (a criterion she would meet in 2020)?

If it is established that she has ILR, then yes, she should be eligible for naturalisation in 2020, assuming that she meets the requirements. Indeed, she can apply after three years of residence in the UK if married to a British citizen and holding valid ILR.

@ secret Simon, established op’s girlfriend maintain ILR and has been let in under ILR, she meets all the requirements for the naturalisation in 2020. Would Home office still questioning that two years absented and retrospectively deemed invalid?

[Stellacat]

Many thanks for the thoughtful response secret simon - it is greatly appreciated. I hadn't considered an SAR with the UKV&I - my only concern there is that her hearing is in ten days' time and the HO indicate you should get the results back within a month which doesn't look like it fits with current timescales (maybe within an appeal window should there be one?). Would you advise that the absence of this information might be grounds to postpone the BRP meeting?

I've had a look at the threads you've linked and to me the indication is that it automatically lapses and is therefore invalid after the two year period yet she is certain that on the occasion she returned after a >2 year absence the IO stamped her passport on the basis of the ILR and not on the basis of the visit visa. Is an IO able to overrule the ILR guidelines and is this at all common?

And finally, if she had been let in under ILR (I suppose this could potentially be established by the SAR you mentioned, would I be correct in thinking that she would have a right to British Citizenship after five years of residency with no major absences (a criterion she would meet in 2020)?

Ogling, have your girlfriend managed get her BRP ?

[oling]

It has been a fair few months since I posted on this board and I want to reiterate my thanks to those who responded - it has been invaluable advice.

I am absolutely delighted to confirm that my girlfriend was granted the BRP in September despite her breach of ILR guidelines (absences of >2 years) which should have resulted in her ILR being revoked. Please note that from the conversations with the immigration lawyer that she spoke to, the indication was that her chances of getting the BRP were very slim.

I would encourage anyone in a similar situation to not give up hope as I nearly did. Although neither of us is privy to any of the specifics around what her successful application turned on, she did thorough research and emphasised her ties to the UK. These included cultural ties she's built through studying English at university, along with her relationships (both me and her many friends here), job (internship), and being a financial custodian to her younger brother who has just started at university in the UK. She emphasised these factors both in her interview and in a heartfelt letter she wrote to the immigration office (which she brought into the BRP meeting with the immigration officer).

Knowing nothing about immigration before I started researching on her behalf, I have to say I became extremely cynical about the whole system not least because the decision seems to depend entirely on the immigration officer assigned to your case on that day. However, in spite of this, I think you are only going to maximise your chances if you thoroughly consider all angles to your case and try to build a framework around how and why you unequivocally see the country (in this case the UK) as your home.

The decision has transformed our lives and to be absolutely honest, I am certain that if it had gone the other way, we would no longer be together and our lives would be in very different places.

[marcnath]

It has been a fair few months since I posted on this board and I want to reiterate my thanks to those who responded - it has been invaluable advice.

I am absolutely delighted to confirm that my girlfriend was granted the BRP in September despite her breach of ILR guidelines (absences of >2 years) which should have resulted in her ILR being revoked. Please note that from the conversations with the immigration lawyer that she spoke to, the indication was that her chances of getting the BRP were very slim.

I would encourage anyone in a similar situation to not give up hope as I nearly did. Although neither of us is privy to any of the specifics around what her successful application turned on, she did thorough research and emphasised her ties to the UK. These included cultural ties she's built through studying English at university, along with her relationships (both me and her many friends here), job (internship), and being a financial custodian to her younger brother who has just started at university in the UK. She emphasised these factors both in her interview and in a heartfelt letter she wrote to the immigration office (which she brought into the BRP meeting with the immigration officer).

Knowing nothing about immigration before I started researching on her behalf, I have to say I became extremely cynical about the whole system not least because the decision seems to depend entirely on the immigration officer assigned to your case on that day. However, in spite of this, I think you are only going to maximise your chances if you thoroughly consider all angles to your case and try to build a framework around how and why you unequivocally see the country (in this case the UK) as your home.

The decision has transformed our lives and to be absolutely honest, I am certain that if it had gone the other way, we would no longer be together and our lives would be in very different places.

Congratulations.

I had not seen this post before but looking at it now, not sure why there would have been any doubt.

The two year absence rule has to be applied at the point of entry if the ECO is not convinced about the strong ties.

Her admission as a returning resident then assures the ILR status.

There was an obvious close call when the ECO decided to ignore the visitor visa. If she had been admitted as a visitor, that would have automatically cancelled the ILR (irrespective of how long she has been abroad). That is because no one can hold two types of visa simultaneously and the latest one automatically terminates the earlier one.