Overstaying Help Please

[Yazzy]

My husband originally came to the UK on a visitor visa in 2008 and overstayed until 2012. He voluntarily left the UK in 2012. We got married and his spouse visa was originally refused because of his overstay history but when we appealed in court it was allowed. He received his ILR residence permit card today. I was looking to apply for his neutralisation when i came across the good character overstay issue. The 10 year wait.

Does this new rule affect him?
Can he apply?

[CR001]

Does this new rule affect him?

Yes. It also is not a 'new rule'. It has been in place since December 2014 for Citizenship applications.

Can he apply?

Highly likely to be refused. He will likely only be able to apply in 2024, 10 years from the date he got his spouse visa.

[aman90]

If I’m not mistaken it can be the day you declared the infraction.
Also a single over stay can be disregarded by caseworkers discretion- if that’s the only reason.
You should read the good character guidance and nationality by discretion guidance and apply it to ur circumstances.

[secret.simon]

Also a single over stay can be disregarded by caseworkers discretion- if that’s the only reason.

A single overstay of under 28 days. The OP's husband overstayed for about four years.

Not sure that the good character guidance will give the OP any grounds for optimism.

Prior to 24 November 2016, migrants were permitted a grace period of 28 days after the expiry of any leave during which they could make a further application to renew their leave without being penalised as an overstayer.

Changes to the Immigration Rules on 24 November 2016 abolished this 28-day grace period, and now provide for current overstaying to be disregarded only in a very limited number of scenarios. Otherwise it is a ground for refusal. For further information see applications from overstayers.

Where a person overstayed at some point in the 10 years prior to an application for citizenship, discretion to overlook this breach will normally only be considered if it is the sole adverse factor weighing against the person’s good character; and
• the person’s application for leave to remain was made before 24 November 2016 and within 28 days of the expiry of their previous leave, or
• the person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of
overstaying because an exception under paragraph 39E of the Immigration Rules applied, or
• the period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently
withdrawn or quashed or which the courts have required the Home Office to reconsider.

Can he apply?

he can apply. But it is highly likely that the application will be refused. And there is no refund for a refused application.

You are much better off applying on or after 2022 (after the tenth anniversary of his illegal overstay ending).

[aman90]

@secret Simon- thanks for the info...

[Yazzy]

My husband originally came to the UK on a visitor visa in 2008 and overstayed until 2012. He voluntarily left the UK in November 2012.
We got married and his spouse visa was originally refused because of his overstay history but when we appealed in court it was allowed. He entered the UK on spouse visa in August 2014.
He received his ILR residence permit card in November 2019.
We would like to apply for neutralization but I understand there is a good character overstay issue which may apply to his case. The 10 Year wait.

I was hoping if someone could please help me understand it better as to when he can apply? Is the 10 year wait from the date he left the UK from his overstay (Nov 2012)? Or is it the date he re-entered on his spouse visa (Aug 2014)

Does the 10 year wait end in 2022 or 2024?

[CR001]

Topics Merged. You have already been given advice when you asked previously.

[Yazzy]

Hi yes sorry i last asked this question in Nov 2019.
I want to be sure before i apply for my husband as we do not want the application to be refused as the money is non refundable.
Last time i got a mix answer
if someone could please help me

[vinny]

I think a person ceases to overstay in the UK once they have left the UK? Similar to Calculating the relevant time period (re-entry ban).

Moreover, the Lawful residence requirements are now more relaxed:

An immigration breach relating to lawful residence includes overstaying, illegal entry and absconding.

Prior to 28 June 2022, immigration breaches in the 5-year period before a citizenship application were normally a reason for refusal of citizenship on the grounds of not meeting the lawful residence requirement set out in section 4 and section 6 (read with paragraphs 1 and 2 of Schedule 1) of the British Nationality Act (BNA) 1981. If the breach was in the 10-year period before a citizenship application, it was normally grounds for refusal of citizenship on the basis of not meeting the good character requirement.

Schedule 1 of the Nationality and Borders Act 2022 (NABA 2022) amended the requirements for naturalisation and registration for British citizenship under sections 4(2), 6(1) and 6(2) of the BNA 1981, so that a person can be treated as meeting the lawful residence requirement during the qualifying period without further enquiry where they hold indefinite leave to enter or remain in the UK. This change commenced on 28 June 2022.

This change does not extend to applications to naturalise as a British overseas territory citizen.

To align with changes to the qualifying period, where a person has committed immigration breaches relating to:

• illegal entry
• absconding
• overstaying

may be disregarded when assessing good character during the 10-year period prior to the application, but only where all of the following factors apply:

• the person is applying for naturalisation as a British citizen, or registration as a British citizen under s.4(2), 6(1) or 6(2) of the BNA 1981 after 28 June 2022
• that person holds indefinite leave to enter or remain (ILE or ILR, also known as settlement) in the UK
• no concerns (for example, regarding the person’s character) have arisen since the grant of settlement which might cast doubt on the decision

Therefore, applications where it remains appropriate to consider immigration breaches relating to lawful residence, alongside other good character factors, may include but are not limited to:

• where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal
• where something occurred after the grant of settlement to indicate revocation of that status may be appropriate
• applications to naturalise as a British overseas territory citizen

Immigration breaches that do not relate to lawful residence (for example working in breach of conditions, hiring illegal workers, or failure to observe reporting requirements) must still be considered.

See Naturalisation as British citizen by discretion

[London22]

My husband originally came to the UK on a visitor visa in 2008 and overstayed until 2012. He voluntarily left the UK in 2012. We got married and his spouse visa was originally refused because of his overstay history but when we appealed in court it was allowed. He received his ILR residence permit card today. I was looking to apply for his neutralisation when i came across the good character overstay issue. The 10 year wait.

Does this new rule affect him?
Can he apply?

Hello
If he applies now they will look back 10 years from the date a decision is made which lets assume if caseworker looks at the application in May 2023 ,what he will do is look back 10 years from May 2023 which obviously starts from 2013 when your husband hasn't committed any breaches as he already left & was outside the UK .In my opinion his application will be successful.If not it can be easily challenged in the JR. Every case is different .There is no reason to refuse such an application on previous overstay which is beyond 10 years range of applies now.Goodluck .It seems he,s got good chances.