UK Citizenship Eligibility / Previous Overstay

[Lottie79]

My partner of over 10 years (co-habiting) has been considering applying for Citizenship for some time but has one major concern as follows :

Most recently, she was granted ILR in 2011. Prior to that she was granted a VAF4 spouse's visa in late 2008. In 2012 she successfully obtained a Schengen visa for a holiday in Europe.

However, the concern stems from prior to that.

When she originally came to the UK she was married to someone else. He then became abusive and manipulative and, when visa renewal time came, he took her passport from her and told her he was arranging an extension.

I was not aware of any of this until much later but, once the ex-partner had deceived her beyond the point of visa expiry she then became an unwitting overstayer. Her fear of this and inability to find a viable solution led her to keep this from me for some time, although she did ultimately discuss it with me and we decided to tackle it head on.

She returned to Thailand in 2008 (at her own expense) in order to start the visa process again, although when she left the UK she was questioned by officials about her overstay and issued with an IS151A.

After lengthy preparation, and a very lengthy interview (in which all of the above was covered in depth) she was granted the 27 month VAF4 from which we have now progressed to ILR.

Bearing in mind the Citizenship guidelines state that 'you must not have broken any immigration laws while in the UK' does this preclude her from ever applying for Citizenship or is there are period after which this would be considered as 'spent'?

Or does the subsequent issuing of VAF4 / ILR clear the way for her to apply.

Would getting married change anything?

Any advice would be gratefully received.

Thanks in advance.

[7by7]

The 'good character' part of "1. Check if you can apply" at Become a British citizen says that the applicant must not have "been involved in immigration offences in the last 10 years."

"9.7 Evasion of immigration control" of Annex D: the good character requirement says

The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:
a. failed to report
b. failed to comply with any conditions imposed under the Immigration Acts
c. been detected working in the UK without permission

So once the 10 years from her overstay is up, i.e sometime in 2018, she should be ok on this point.

Spouses and civil partners of British citizens can apply for naturalisation after they have lived in the UK for at least three years and have ILR. All others, including unmarried partners, must have lived in the UK for at least 5 years and held ILR for at least 1 year.

As your partner was granted ILR in 2011 she, presumably, entered sometime in 2009. So sometime this year she will meet the 5 years residency requirement and as she has held ILR since 2011 under normal circumstances she could apply as soon as she has done so.

Provided she meets all the other requirements, of course: including the good character one, which applies to all applicants, whether they be the spouse or civil partner of a British citizen or not.

Therefore, your getting married would make no difference. By the time her 10 years is up she will have met the 5 years residence anyway.

[7by7]

<snip.

As your partner was granted ILR in 2011 she, presumably, entered sometime in 2009. So sometime this year she will meet the 5 years residency requirement...

Ooops!

5 years from 2009 is, of course, 2014! She already meets this requirement!

Apols for the error, and any confusion it caused.

[Lottie79]

Many thanks for the above.

Would you start counting the 10 years since overstay from the date she left the UK in 2008 (April I think) or the date she returned (October)?

Slightly off at a tangent but her ILR is attached to a passport that subsequently expired in 2013. Her existing passport to 2018 will also expire before the 10 year period elapses. Will this likely cause any issues?

[7by7]

I believe that the 10 years starts when her overstay was discovered and she was issued with the IS151A; i.e. when she left the UK.

ILR is, as the name suggests, indefinite.

It will lapse if the holder spends 2 or more years continuously outside the UK, it can also be cancelled by immigration if the holder is no longer a UK resident and simply using the ILR for visits; but neither of those situations is relevant here.

If she wishes, she can apply to transfer her ILR to a Biometric Residence Permit; but this costs £308 if she applies by post, £808 if she applies in person.

Doing this is voluntarily; it is not compulsory.

The ILR stamp in her old passport is still valid, even though that passport has expired.

So she can simply present both the old passport with the ILR stamp in it and her current, valid passport whenever necessary.

Edited as half the post went missing when I hit the 'Post' button!

Edited April 5, 2016 by 7by7

[gandalf12]

If you are living in the UK and she has been there for a minimum of 3 years then with a character reference which they require there shouldnt be a problem. Having said that I had nothing but problems and was one of the main reasons for leaving the UK.

[7by7]

Gandalf12,

The OP is asking about their unmarried partner.

The 3 years UK residence applies only to the spouse or civil partner of a British citizen. For all others, including the unmarried partner of a British citizen, the residential qualifying period is 5 years.

From what the OP has said, character references aren't a problem.

The problem is the previous considerable overstay and administrative removal.

This normally means that a person is not eligible to apply for British citizenship for the next 10 years.

Lottie79,

I say 'normally' because there may be mitigating circumstances which allow the decision makers to use discretion on this point. But as it appears that some considerable time passed between her leaving her abusive husband and leaving the UK I doubt that they would.

But I am just a layman, if you want to investigate that further I suggest contacting a suitably qualified and experienced lawyer.