Long Residence ILR to Naturalisation --Loop Hole!!!

[zimbo]

Hi All,

Considering I applied for ILR on basis of Long Residence Concession a year before it was granted.

Now I am 5months into ILR.

The thing is I am considering applying for Citizenship (Natu... ). I know the definite rule states that I wait minimum 10+ months before application for naturalisation.

I think I find a loop hole!


My case is based on the Chapter 18 Annex C (NATIONALITY INSTRUCTIONS, NATURALISATION AT DISCRETION,
THE RESIDENCE REQUIREMENTS)
Section 7

7. Immigration time restrictions in the year prior to the application date


Here is my case and please correct if wrong:

1) According to Chapter 18 Annex C Section 7.3 (g)

g. consideration of an application for indefinite leave to remain, made
more than 15 months before the citizenship application, had been
protracted through no fault of the applicant, providing ILR was
eventually granted.

2) According to Chapter 18 Annex C Section 7.3 (e)

e. the period of limited leave was more than 90 days at the
beginning of the 12 month period, and the other statutory
requirements, including the other residence requirements,
are met, only if :

i. the applicant has established links with the UK through
presence here of home, family and a substantial part
of estate, and

ii. there are compelling business or compassionate
reasons to justify granting the application now; or


Statement (1) above means that if my ILR was issued 12 months after application, then this period is counted towards myleave to remain period.

statement (2) means I have home and business (Need to Establish Europian Link).

Am I right on both counts or just dreaming?

Cheers

Zim

[Cosmopol]

I think you could just try and apply for BC now, referring to these law sections in your cover letter. At worst, your app will be denied and you'll apply again later - it's worth a try, imho.

[tvt]

This is not a loophole. It is just a relaxation of the rules given to one who suffered a delay in his ILR application.

[anish18sudhakar]

Dear Zimbo,

I wanted to know how many years did you spend here before applying for indefinite leave if you could respond that will be a great help

[zimbo]

Hi Anish,

I spent 13 yrs before application for ILR on Long Residence Concession. Remember that descretion under mixed (Lawful and unlawful) LRC is for between 10 and 14 yrs, so it doesnt have to be 14 yrs.

Also my case is quite complex, since I was actually given HSMP the year before I applied, so the trick I played was: I applied for ILR on basis of LRC a week before my HSMP became void, hence retaining my HSMP status while my case was under consideration.

My ILR was under consideration for over 8 months, the actual period between application submission and ILR approval is exactly 12 months. I must also add that I had to get my MP involved in the last 4 months of the application, since I have lived (Home owner) in the locality for 7yrs.

Regarding my current discussion about early BC application: I called HO and was told that descretion could be exercised if I have enough evidence to prove my case. In any case I would wait another two months before I take the risk (giving me 7 months ILR status). My strongest argument is business and delayed ILR approval. They are not going to advice on deescretion over the phone for obvious reason, not encouraging you one way or the other and its Case worker specific (whether he has a nice sleep the night b4)


I hope this helps.

Cheers

[Kayalami]

I reviewed the old message board and note you obtained your ILR in February 2004 under the 10/14 year Long Residence Concession. Based on this you would be eligible to apply for naturalisation as a British Citizen in February 2005 where you would have held ILR for 12 months.

I have also reviewed the discretionary details in the Nationality Instructions and my comments are:

Ch 18 Annex C sec 7.3 (e) - established links to the UK

This is where you are applying 90 days/3 months before the 12 month no time limit/ILR period - you are miles away so its irrelevant.

Ch 18 Annex C sec 7.3 (g) = delay in determination of an ILR application.

IMHO this would apply to where a case was considered under the immigration rules and was unduly delayed as opposed to a concession application. Concession based applications are in their nature subject to delays and the HO can argue that they had to verify your details especially given the checks they had to undertake in relationto the concession you were applying under. These include your Income Tax and NI records, criminal checks, employment references etc.

However as you have noted from your immigration experience to date the Home Secretary through his Home Office department has sweeping discretionary powers. If you put forward strong representations you may get lucky especially if it could be argued that the policy has now been formalised in the rules and is no longer a concession - this would have to be timed against your application date.

In any case if you review Ch 18 Annex C sec 7.3 (a) you will note that an application which is outstanding at the 12 mth no time limit stage would get approved so this may be an option given that current average processing time for naturalisation is 6 months. Further if you are still married to your BC wife then there may be no need to wait - I am not aware of anywhere in the rules that says you must be together/ not separated - all it says is that you must be married.

IMHO notwithstanding such discretion your other challenge is that pertaining to 'not being in breach of the immigration rules' - HO forgiving your illegality for ILR purposes does not mean it will be the case for naturalisation.

Good Luck


P/s I said BC wife as I note the exchange between you and vee on the old board - you studied at an all boys boarding school .