ILR for 10 year residency - three questions on a unique situation

[Ozkanist]

Hi there,

My wife and daughter (17 years old) applied to ILR through the 10-year residency route and did their biometrics on 5 April 2024. They didn't opt for priority service assuming that their application would be processed within a short period of time. It was only after visiting this forum we noticed that a standard processing time for such an application is around 8 weeks.

I am exempt from immigration control under section 8.2 or 8.3 of the Immigration Act (working for an international organization). My wife and daughter are also exempted as they are part of my household. We have been living in the UK for nearly 17 years under this exemption. We get issued a vignette every three years by the Home Office confirming our immigration status.

I've got three questions in relation to my wife's and daughter's applications.

1) I heard that travelling outside the UK after submitting an ILR application would invalidate a pending application. I understand the logic here for a person with an expired BRP because once that person has left the UK, he/she will not have a valid document to return to the UK. However, in our situation, our vignettes are valid until the end of December 2026 so there is nothing that stops us from returning to the UK (in fact, we are exempt from immigration control by law). Now the question is, can my wife and daughter travel outside the UK whilst waiting for a decision on their applications, taking into account the above-explained situation?

2) If we knew our application would take that much time, we would have chosen the priority service for sure. Can we still do it by re-submitting our applications (I think this is called "variation")? In connection with this, if I go through this route, can I get a refund for the fees we paid when applying for the first time? We do not mind waiting for a refund, the main question is can we get our many back or not?

3) My final question is about emergency travel to the home country. My father is living in a care home in Turkiye and his health has recently deteriorated. This apparently brings up the question of whether my wife and daughter can travel to Turkey if the circumstances require them to do so and, if yes, are we supposed to get permission or give notice in advance of the emergency travel?

I would appreciate it if you could provide answers for the questions above to the best of your knowledge. I will be happy to provide any additional information or details you may require.

Many thanks in advance for your assistance and guidance.

Best regards,
Ozkan

[meself2]

Now the question is, can my wife and daughter travel outside the UK whilst waiting for a decision on their applications, taking into account the above-explained situation?

No. That has no relevance on whether BRP is valid or expired - if you leave, HO considers application as withdrawn. There was a recent case of this happening on forums (it did involve expired BRP, but it just means HO is watching this).

Can we still do it by re-submitting our applications (I think this is called "variation")? In connection with this, if I go through this route, can I get a refund for the fees we paid when applying for the first time? We do not mind waiting for a refund, the main question is can we get our many back or not?

I don't know if you can do that and get your money back - other members will advise.
But even if possible, I would not advise it as it's not a guaranteed service. Basically, HO can say "your situation is complicated, so even though you paid for priority service, we will take longer" and, as you mentioned here, your situation is not exactly straightforward, so that's what may as well happen.

whether my wife and daughter can travel to Turkey if the circumstances require them to do so and, if yes, are we supposed to get permission or give notice in advance of the emergency travel?

If you mean "can they warn someone and leave country, but have their application still going" - don't think so.
Nothing stops them from traveling per se - they can leave, they just will have their pending applications cancelled and fees paid will be lost, as mentioned above. Since you mentioned that your family has exempt vignettes, they can return and reapply for ILR.
I've seen someone on forums asking HO to expedite their decision on compassionate grounds, but cannot recall whether they succeeded or not

[zimba]

1. Leaving the UK while having a pending application is just like withdrawing your application. This is according to paragraph 34K of the immigration rules and has nothing to do with BRP/visa expiry.

2. You cannot expedite an application. Super priority service also has no guarantees, even if you re-apply as you have already been advised. Complex applications often cannot be decided in priority timeframes

3. The circumstances do not matter as paragraph 34K of the immigration rules still applies if they travel out of the UK. They are free to travel, just that it will affect their application

[Ozkanist]

Many thanks to meself2 and zimba for your comments and answers. Although you didn't tell me what I had hoped for, I still appreciate your kind assistance.

I admit that our applications present a rare case but certainly not a difficult one because everything about us has been continuously reported to FCO and HO since we step our feet in this country. An application by a former colleague of mine had resulted on the same day (he used priority service).

I remain hopeful that our applications will be completed within the 8-week average...

Kind regards,
Ozkan

[Ozkanist]

I'd like to provide an update on my wife's application and ask you a new question thereafter.

My wife received an email from HO, advising as follows:

"Your current leave is as a dependent of a person who has exemption from the immigration rules. However, for you to apply for indefinite leave to remain their employment and exemption must have ended."

I do not where this requirement is mentioned. I have checked the Guidance on gov.uk regarding long residence but could not find such condition.

Do you know anything about this requirement and, if yes, can you please give me the reference to the relevant document?

I have another question regarding my younger daughter who was born in the UK and who is now 12 y/o. I wonder if she can apply for UK citizenship without being affected y exempt status. She has lived all her life in the UK with an exempt visa that she got through me.

Thanks in advance for your assistance.

B/R,
Ozkan

[vinny]

Section 1: persons exempt from control

8. AFTER ENTRY

8.1. Applications for leave to remain from persons who are exempt

A person who applies for leave while still exempt should be told that there is no power to grant him leave but that if he applies when he ceases to be exempt his application will be considered (see ANNEX C and D below, "Persons who cease to be exempt from control").

Alternatively, perhaps Naturalisation is possible? Then elder daughter may included and register under Section 3(1)?

Younger daughter may also be entitled to register under Section 1(4).

[Ozkanist]

Dear Vinny,

A MASSIVE THANK YOU for the information you have provided, particularly the tips on alternative ways to pursue.

I carefully read the "Nationality policy: Naturalisation as a British citizen by discretion" and if I understood it correctly, my wife could apply for naturalisation as a British citizen under Section 6(1). She meets all the requirements listed on page 6 of the guidance.

I dug a little more into the "residence requirements". First, I got a bit concerned about the "technical absences" issue because the vignettes on our passports say "Exempt from immigration control: section 8(2) or 8(3)". I understand technical absence is a problem for those exempt under Section 8(3) (i.e. diplomats with total exemption from control). However, I found out that we are exempt from immigration control under section 8(2) of the Immigration Act 1971 therefore, technical absence should not be a problem in our case (the international organization I work for is listed under section 5 of Annex B to Immigration Directorates' instructions, which means that we should have a partial exemption from control aka "exempt from immigration control under section 8(2)").

One of the requirements for naturalisation as a British citizen under Section 6(1) states that the applicant should not be subject to any restriction on the period of stay in the UK according to the immigration laws. To my interpretation, this is also not an issue for us because page 24 of the Nationality policy document (https://assets.publishing.service.gov.u ... retion.pdf) indicates that people exempt from immigration control under section 8(2), 8(3) or 8(4) of the Immigration act 1971, unless technically absent from the UK, must also be treated as meeting this requirement.

Assuming that my interpretations above are right, my wife should be able to apply for naturalisation as a British citizen under Section 6(1) without any issues (this will also save us from paying double fees for ILR and naturalisation - hurray!).

I would appreciate it if you could check the above and revert with any further advice or recommendations.

I also noted your advice regarding my elder daughter, who is 16 years old and was born outside the UK. It is a relief to learn that she may register under section 3(1) (i.e. "Discretionary applications"). I think the most straightforward application will be for my younger daughter - lucky her

Once again, I would like to express my deep appreciation and gratitude for your kind, efficient and prompt assistance.

Best regards,
Ozkan

[vinny]

Moreover, if elder daughter has lived in the UK for more than 10 years, then I think she may also register independently under Section 3(1).

I had reached the same conclusions as you did. If applying, then perhaps include these points in a covering letter, to guide the caseworkers?

If anyone else has a different view, then please comment.

Please let us know what happens.

[Ozkanist]

Dear Vinny,

Thanks for your last reply and suggestions.

Just to provide you with an update, we received another email from the caseworker confirming the closure of our application and advising that a refund will be issued within 28 days.

Now, we have turned our focus to my wife's new application; naturalisation under section 6(1).

I've got questions for you at this stage. Unlike the ILR application, I understand there is no travel restriction for naturalisation applications, can you advise please?

The second question is about the biometric photo and fingerprints. Is there a way to use the biometric data provided at the first time also for the second application?

Thanks,
Ozkan

[AmazonianX]

Dear Vinny,

Thanks for your last reply and suggestions.

Just to provide you with an update, we received another email from the caseworker confirming the closure of our application and advising that a refund will be issued within 28 days.

Now, we have turned our focus to my wife's new application; naturalisation under section 6(1).

I've got questions for you at this stage. Unlike the ILR application, I understand there is no travel restriction for naturalisation applications, can you advise please? Applicant can travel while application is ongoing.

The second question is about the biometric photo and fingerprints. Is there a way to use the biometric data provided at the first time also for the second application? It is not a decision in your hands whether this will be used or you going in for new appointment.

Thanks,
Ozkan

[CR001]

Now, we have turned our focus to my wife's new application; naturalisation under section 6(1).

Please ask your citizenship questions in the British Citizenship sub forum. These questions are not relevant to your ILR topic or the ILR sub forum.

British Citizenship Sub Forum (click)