A very difficult situation!

[marianne001]

Hi all,

I just found this website today and it's very useful... so here's my problem(here's hoping someone replies!).

I came to the UK when i was 4 1/2 years old with my mother- who overstayed on her tourist visa. I'm now 22.

My mum had actually been studying in the UK in the 1970s, had 2 kids here (both of whom were British born- e.g. before the law changed in 1982), but she returned home in 1982. The we all came back in late 1988 and overstayed. Due to the 14-year residency (legal+illegal), we were (I was) given ILR in 2004, although my mother was given hers in 2003.

My question is, as a child, would I still have to be resident legally for 5 years before I apply for naturalisation? Although entry was unlawful, does this still apply to a 4 year-old (!)? Or could I possibly argue that I unknowingly came with my mother (guardian) so therefore I could not fulfil the legal requirements as a child? Or somethinig like that.

I'd like to apply for citizenship, mostly because I've been here all my life and certainly feel more British than my "British" friends, some of whom have only been here 5 years or so. It does mean a lot to me, and feels like the natural step to take etc. The reason is also cos I'd like to work abroad for a few months, but having my current nationality, it's practically impossible!

I did ask the IND but they simply said it was up to me whether I decided to apply. Everyone has told me to apply because it happened when I was a child and therefore was unknowingly done, but I don't want to see £200+ gone down the drain because they refuse my application!
I don't mind taking the citizenship test, since I've been educated up to degree level here, though it's a little annoying!

Any suggestions on what I can do?

[ppron747]

The question of what your status was when you were 4 1/2 doesn't really come into it, IMO. It is your status in the last few years that's important.

The residence requirement for naturalisation is that
1 - you must have had no time limit on your stay for at least 1 year before the date of application, and
2 - you must have been in UK (legally) on a day exactly five years before you apply, and all of your time in UK since that day should have been legal. (You're allowed to have been outside UK for 450 days in that five year period, of which not more than 90 days should be in the final year.)

No residence before the start of the five year period counts, whether it was legal or not.

The caseworking instructions for dealing with the residence requirements are here in the IND website, and you'll see that there is discretion to overlook periods of "illegality" during the five years. In particular, paras 8.10 & 8.11 say

8.10 We should normally exercise discretion to disregard a breach of the immigration laws if:

it was inadvertent (e.g. the applicant genuinely forgot to ask for an extension of stay or indefinite leave to remain); or

it was due to rejection of an "in-time", but incorrectly completed, mandatory application form for leave to remain, provided there is no reason to doubt that the form was submitted in good faith; or

it was outside the person's control (e.g. the applicant was a minor when parents failed to obtain or renew the minor's leave to remain in the UK); or

possible regularisation of the persons stay was under consideration during the period of breach ? i.e. there was a pending immigration appeal OR an undetermined application for leave to enter or remain; or

a person who entered the United Kingdom clandestinely presented himself without delay to the immigration authorities following arrival or was detected by the immigration authorities shortly after arrival. In either case, the maximum period involved should normally be 1 month but, if there are extenuating circumstances, it may be longer. In these cases we can waive the breach that occurred from entry until the person?s first application for leave/asylum has been determined (and all appeal rights exhausted).

8.11 We should not normally exercise discretion to disregard a breach in any other circumstances, and particularly not when the breach was both substantial and deliberate.

I have emphasised the point that might apply in your case. But I fear that the instructions are not detailed enough to form a view of the prospect of discretion being exercised in your case.

Arithmetic has never been my strong point, but although you were a young child when you first arrived in 1988, surely you were around 16 or 17 when your five year residence period started - still a minor, but not for long, and for most of the five years you would have been legally an adult, and the argument that your presence here without permission was outside your control loses force.

As you say, naturalisation is not cheap, and I'm sorry to say that I simply don't know whether it is worth a punt. Sorry...

[JAJ]

I did ask the IND but they simply said it was up to me whether I decided to apply. Everyone has told me to apply because it happened when I was a child and therefore was unknowingly done, but I don't want to see £200+ gone down the drain because they refuse my application!
I don't mind taking the citizenship test, since I've been educated up to degree level here, though it's a little annoying!

Paul has given you some good advice. It's not clear how any online forum can add much to it.

Bear in mind that the 14-year concession under which you obtained ILR is itself quite generous - had your family gone to Australia instead, for example, you would probably still be illegal and in a mess.

You may have to just wait out the 5 years, and forget about spending any time overseas until you have your British citizenship. As far as the Life in the UK Test is concerned, as far as I know there's no limit on validity of results, so you could do that whenever it suits you as long as you accept the risk of a rule change.

It may boil down to how much you can afford to lose GBP200. The only constructive comment I can make is maybe contact the JCWI and see if they know how the Home Office have treated naturalisation applicants in a similar situation to yours: http://www.jcwi.org.uk

[marianne001]

Thanks for the reply.

Is it still 5 years even though I got ILR before the 5-year change? I think the rule only changed this year, so it should be 4 years. I'll have to check that. Yes, I'll have to see the JCWI for their advice, since it's a very tricky situation for me. I have read almost everything on the Home Office website (when it's working) and sometimes see something positive, othertimes just get confused.

Hopefully I'll get the info soon and then I can get on with my plans.

Bear in mind that the 14-year concession under which you obtained ILR is itself quite generous

I have indeed...

[bbdivo]

Thanks for the reply.

Is it still 5 years even though I got ILR before the 5-year change? I think the rule only changed this year, so it should be 4 years. I'll have to check that. Yes, I'll have to see the JCWI for their advice, since it's a very tricky situation for me. I have read almost everything on the Home Office website (when it's working) and sometimes see something positive, othertimes just get confused.

Hopefully I'll get the info soon and then I can get on with my plans.

Bear in mind that the 14-year concession under which you obtained ILR is itself quite generous

I have indeed...

Are you not getting the 4/5 year change mixed up with the obtaining ILR change (or have I got it wrong?)

[marianne001]

Are you not getting the 4/5 year change mixed up with the obtaining ILR change (or have I got it wrong?)

I'm not sure...! I am baffled a bit...i will need to speak to a professional adviser.

[JAJ]

Thanks for the reply.

Is it still 5 years even though I got ILR before the 5-year change? I think the rule only changed this year, so it should be 4 years. I'll have to check that.

It's been 5 years for naturalisation for a long time (unless you're married to a British citizen, then it's 3 years). The increase from 4 years to 5 was concerning ILR in some categories (not yours).