Naturalization following ILR on 14 year LRC

[astanley1]

My wife & I were given ILR on the 14 Year LRC basis in December 2005. We want to apply for Naturalization since it is over 1 year since being granted ILR. Will the 5 year residency without being in breach of Immigration Regulations apply in this case as the 14 year LRC includes periods of legal as well as non-legal stay? If so will we have to wait 5 years since being granted ILR?

[VictoriaS]

At one time, many years ago, they allowed time spent in the UK illegally to count, but I don't believe that they do any more, and you are likely to have to wait another 4 years.


Victoria

[bbdivo]

At one time, many years ago, they allowed time spent in the UK illegally to count, but I don't believe that they do any more, and you are likely to have to wait another 4 years.


Victoria

or there are no more non-legal stays in the prior 5 years?

[John]

bbdivo, I think that is a better way of putting it. After all, it is at least theoretically possible for someone, during a 14 year period, to have been legal for say 9 years .... not legal for say 1 year ... then legal again for another 4 years. And now with the additional year on ILR they will indeed have been legal for the last 5 years.

astanley1, what are your facts? Prior to getting your ILR, were you in the UK legally? Or illegally?

[astanley1]

Thanks for your replies. As a final try before waiting for the 5 years after ILR (14 Year LRC), I called the naturalization line & explained my situation & the consultant told me that I am eligible to apply for Naturalization even after I repeated the point on ILR after 14 year LRC.
Since I wanted further confirmation, I tried twice more & spoke to 2 others at the Naturalization dept. on their phone number shown on their website & still received an affirmative response. Can the experts please re-verfy this for me. Your help will be greatly appreciated.

[John]

astanley1, any chance of an answer to the question asked by me?

[astanley1]

Thanks John. Following are the details.
Jan 1989 - Arrived UK on a 6month Visit Visa.
May 1989 - Applied for Asylum due to Religious Persecution in Home Country.
May 1996 - Asylum refused. Did not appeal. No further contact from HO.
Dec 2004 - Applied for ILR through solicitor on 14 Year LRC.
Dec 2005 - ILR Granted.
There was no change in address. Full time employed. Taxes & NI paid. Receipt of Child Benefit.
Therefore should I apply for Naturalization now or wait for 5 years of ILR???????

[SYH]

You are lucky I am in good mood to look this up for you but only because I had recently seen it so it was so hard to do.

I think you are golden, the hurdles was your ILR, now that it has been granted, the issue for naturalizaiton is your absences, not whether the stay was legal. Please see link below
There is discussion regarding being illegal and how it should be considered but if you back track to the guidance regarding ILR long residency provided for 14 year stay, it implies that if you regularized your status that then the caseworker can exercise discretion on grant you naturalization

http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

Long residency guidance
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

[SYH]

Thanks for your replies. As a final try before waiting for the 5 years after ILR (14 Year LRC), I called the naturalization line & explained my situation & the consultant told me that I am eligible to apply for Naturalization even after I repeated the point on ILR after 14 year LRC.
Since I wanted further confirmation, I tried twice more & spoke to 2 others at the Naturalization dept. on their phone number shown on their website & still received an affirmative response. Can the experts please re-verfy this for me. Your help will be greatly appreciated.

I think you should be grateful to hear such good news and not rely on us to tell you it is alright. See the links above and read and interpret it for yourself.

[John]

astanley1, thanks for posting your UK immigration history. As I see it you were legal in the UK from January 1989 until May 1996, then illegal until December 2004, and then legal again once your ILR was granted.

As it is a requirement when applying for Naturalisation to have not been in the UK illegally at any time in the 5 year period up to when you apply, sorry, I don't think you can apply for Naturalisation at this time. I think you will need to wait until December 2009 ... apply no earlier than the 5th anniversary of the issue of the ILR visa.

However a further thought .... do you happen to be married to (or in Civil Partnership with) a British Citizen? If that happens to be the case then a 3-year qualifying period would apply, so you would be able to apply in December 2007.

[SYH]

astanley1, thanks for posting your UK immigration history. As I see it you were legal in the UK from January 1989 until May 1996, then illegal until December 2004, and then legal again once your ILR was granted.

As it is a requirement when applying for Naturalisation to have not been in the UK illegally at any time in the 5 year period up to when you apply, sorry, I don't think you can apply for Naturalisation at this time. I think you will need to wait until December 2009 ... apply no earlier than the 5th anniversary of the issue of the ILR visa.

However a further thought .... do you happen to be married to (or in Civil Partnership with) a British Citizen? If that happens to be the case then a 3-year qualifying period would apply, so you would be able to apply in December 2007.

Obviously I disagree. It doesn't make sense to grant him ILR on an exceptional basis if he has to wait another 5 years to be naturalized. Then don't create a provision to allow ILR when part of the 5 year period is an illegal status and instead make him wait to get the ILR so that when it comes time to naturalize then no period in the residency part is considered an illegal stay.

[John]

It doesn't make sense to grant him ILR on an exceptional basis

He wasn't. Long Residence applications, including 14-year applications, are now within the immigration rules.

SYH, if you can find anything at all in the guidance provided to BIA staff, to support your argument, please do provide details. Believe me, I would love to be wrong on this one.

[SYH]

It doesn't make sense to grant him ILR on an exceptional basis

He wasn't. Long Residence applications, including 14-year applications, are now within the immigration rules.

SYH, if you can find anything at all in the guidance provided to BIA staff, to support your argument, please do provide details. Believe me, I would love to be wrong on this one.

Yes but my point is that if they are granting ILR despite illegality status then it should rollover into naturalization which is why the consultants keep telling him he is eligible.
thats my take on it and interpretation of the guidance

[astanley1]

Thanks SYH & thanks John. My spirits & hopes are rising. The question however is " Should I Stay (wait) or should I go (apply) ???".
Please let me know.

[John]

my point is that if they are granting ILR despite illegality status

Well yes, because that is what the immigration rules actually say! But those same immigration rules, or any other document I have seen, don't change the character of the time before ILR was granted. He was clearly illegal at that time.

Lets just look at the words in the first of the documents linked to above. 8.1 says :-

Section 2 of the Immigration Act 1971 (as amended by s.39 of the BNA
1981) identifies persons having the right of abode in the UK. All others
(except certain EEA nationals, their family members and persons who are
exempt from immigration control under s.8 of the 1971 Act - see paragraphs
8.2 and 9 below) require leave to enter the UK. (In the case of EEA
nationals, see also "EUROPEAN ECONOMIC AREA AND SWISS
NATIONALS" in Volume 2). Under s.11 of the Nationality, Immigration
and Asylum Act 2002, any such person who has entered the United
Kingdom (within the meaning of s.11 of the Immigration Act 1971) but does
not have leave to enter or remain is deemed, for the purposes of the BNA
1981, to be here in breach of the immigration laws. Section 11 of the NIAA
2002 came into force on 7 November 2002, and the definition of "in the
United Kingdom in breach of the immigration laws" which it contains is,
generally speaking, to be treated as having always had effect. Guidance on
the position of people who are in the UK pending determination of an
application for, or appeal against refusal of, further leave to remain/ILR is
given in paragraphs 8.3 - 8.6 below. (NB. Unlawful residence should not be
confused with technical absence. A person is not technically absent merely
because he is in breach of the immigration laws by being here unlawfully.
Technical absence is a separate issue (see paragraph 9 below).

-: and in accordance with that he was clearly ""in the United Kingdom in breach of the immigration laws", up to the time that he got ILR.

In 8.8 it says :-

Under paragraphs 2 and 4 of Schedule 1 to the 1981 Act, there is
discretion to disregard breaches of the immigration laws during the qualifying
period. Such breaches only involve being here without leave to enter or
remain. Other immigration offences, such as breaching a restriction on taking
employment and harbouring other immigration offenders, should not be
considered under the residence requirement, but under the good character
requirement (see Annex D).

So OK, BIA have a discretion to ignore the breach. However 8.10 tells us how they should exercise that discretion :-

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)
• an application for asylum or leave to remain was refused but was later
acknowledged to be an incorrect decision and the appropriate leave
was granted

-: and I am failing to spot anything to assist us there. Which leaves us with 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.

Accordingly, and with regret to astanley1, the only way I read those instructions to BIA staff is that yes, they do have a discretion, but no, they should not exercise it in his favour.

If the application cost say £10 I would say ... go for it! However there is £575 at risk here and accordingly I have to say that I remain unconvinced that the application would succeed at this time.

But if anyone is able to show that I am wrong, rather than just suggesting that the granting of ILR changes the character of the time before the ILR, then please do post.

[SYH]

Again I don't see it that way. And I see it as it is worth the money to try to get naturalization than the 5 years more that he has to wait. They are not going to take the ILR back if he applies.
Thats my take, I'd go for it.
And let us know if you do and what happens.
I want a dinner and beer if you succeed from both John and astanley

[John]

SYH, it is not your £575 at risk is it!

Again I don't see it that way.

I am now struggling to see in what way you do see it. Are you saying that we can disregard the illegal time completely? If so, why?

[SYH]

SYH, it is not your £575 at risk is it!

Again I don't see it that way.

I am now struggling to see in what way you do see it. Are you saying that we can disregard the illegal time completely? If so, why?

no its not my money but I don't get the benefit of it either.

I already explained it. If they are willing to regularize his status by providing him with the ILR, then they shouldnt go back and say but you were illegal for natualization. Otherwise then don't give him ILR in the first place and instead wait until his last 5 years is based on a legal status.

[astanley1]

Thanks John & SYH for the input. I was just looking at the ILR Stamp & note the following points in it:
Residence Permit
Valid Until : Indefinite
Type of Permit: Settlement
Remarks: Indefinite Leave to Remain in the UK.
Do these points especially (Type of Permit: Settlement) shed any light
to the situation?

[SYH]

Thanks John & SYH for the input. I was just looking at the ILR Stamp & note the following points in it:
Residence Permit
Valid Until : Indefinite
Type of Permit: Settlement
Remarks: Indefinite Leave to Remain in the UK.
Do these points especially (Type of Permit: Settlement) shed any light
to the situation?

I think you should do us the courtesy and you the service of reading the links posted instead of relying on us to come up with a definitive answer for you

[sakura]

Dunno if it helps, but I do know someone who was given ILR on 14-yr long residency, he tried to apply for naturalisation but they told him he needed to make up the legal qualifying period before being eligible. Note that this was when it was cheaper, not with the current prices.

I do not know of anyone that has successfully applied for naturalisation immediately (or after one year) under the 14-year residency. Then again I don't know that many people who applied under the 14-year long stay full stop!

I suggest the lawyers/solicitors give their experiences?

[SYH]

Dunno if it helps, but I do know someone who was given ILR on 14-yr long residency, he tried to apply for naturalisation but they told him he needed to make up the legal qualifying period before being eligible. Note that this was when it was cheaper, not with the current prices.

I do not know of anyone that has successfully applied for naturalisation immediately (or after one year) under the 14-year residency. Then again I don't know that many people who applied under the 14-year long stay full stop!

I suggest the lawyers/solicitors give their experiences?

Quite right, it would help if you can give the time frame of when this occurred.

[John]

astanley1, earlier I flippantly mentioned that it would be different if the Naturalisation application cost just £10. But in fact there is an application that does cost exactly £10, and it might greatly assist you in understanding whether a Naturalisation application would succeed, or not.

That is, I think you should make a Subject Access Request .... effectively getting you a copy of the Home Office records on you. Having got that you might have a better idea of how to proceed.

Click here to download the BIA document that tells you a lot more about SAR and how to apply for a copy.

[SYH]

astanley1, earlier I flippantly mentioned that it would be different if the Naturalisation application cost just £10. But in fact there is an application that does cost exactly £10, and it might greatly assist you in understanding whether a Naturalisation application would succeed, or not.

That is, I think you should make a Subject Access Request .... effectively getting you a copy of the Home Office records on you. Having got that you might have a better idea of how to proceed.

Click here to download the BIA document that tells you a lot more about SAR and how to apply for a copy.

You John, flippant. NO!

[Rambo]

The guide to naturalisation applications states:

'You should not have been in breach of immigration law during the residential qualifying period. You should have been here legally. In other words you must have had the necessary permission under the immigration laws to be in the UK. You may be refused if you have been in breach of immigration laws during the residential qualifying period. This is especially relevant if you came to the UK as an asylum seeker and your application for refugee status and any appeals were refused during this period. Or if you entered UK illegally and obtained refugee status only during the residential qualifying period.'