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Author Topic: Refused application for Indefinite Leave to Remain, need advice  (Read 5167 times)
bluerthanmonday
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« on: May 19, 2010, 01:50:08 AM »

Hi everyone. I'm an American citizen, and a resident in the UK under the EEA Family Visa since February 2007.

My husband, a Swedish national, has lived in the UK for nearly 9 years. He's just been naturalized as a British citizen (April 2010). I hope to be naturalized too. I filed my application for Indefinite Leave to Remain as the partner of a British citizen a week after his citizenship ceremony.

Before we applied, both my husband and I called UKBA on three separate occasions to ask their advice. Each time we were told that I could apply for my ILR as soon as my husband was a British citizen, provided I had been resident here for longer than 2 years.

I was refused my Indefinite Leave. The reason given was that my husband had not been "present and settled" in the UK for the proper length of time. However, this is patently incorrect, as he would not have been able to be naturalized at all had he not been present and settled. And 9 years is well over the 6 year period required.

It seems to us that an administrative error has been made. Can we refute this?

Also, no one seems to really know the protocol for when the spouse of an EEA national becomes naturalized in the UK. What I'm really trying to find out is: if my husband was able to change his status, am I still bound by the EEA rules I came in on? Or can my status change now that he is a citizen?

(We thought we had this covered after we phoned UKBA and got the same affirmative answer three times.)

I know that I can reapply for ILR after being resident for 5 years, and be naturalized 1 year after that ILR under the EEA rules -- however the sole reason my husband became a citizen was so I could get my own citizenship sooner. Of course, Home Office kindly took our money, it's not refundable.  Roll Eyes That sticks in my craw too, since if UKBA had not assured me I'd get it, I'd never have bothered to apply...

I am interested in finding a good solicitor in the London area who will advise us. I've combed listings on the web and written to several solicitors, but most of them don't seem to understand the situation.

Can anyone here help? Any knowledge you have or access to legal contacts you trust would be very much appreciated. And thank you all for reading my post.
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garry
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« Reply #1 on: May 19, 2010, 02:25:19 AM »

It's strange that you were relying on UKBA for something so important.  Did you not get a feeling when you spoke to them that something was out of whack? 

The leading practitioner in this particular area would be, arguably, Andrew Tingley at Kingsley Napley.  Telling the secretary that you were referred from here *might* get you bumped up the queue, or it might not.   Smiley
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london_lad
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« Reply #2 on: May 19, 2010, 06:12:42 AM »

My take on this is as follows:

If you were on the EEA Family Permit since February 2007, you would have been allowed to get permanent residence via that track in February 2012. Then, had your partner not become British, you would have been able to have applied for UK citizenship a year after that.

As you know, this all became more complicated after your husband became British. I don't believe that this cancelled your EEA Family Permit as he was still Swedish. But that is a question that you might want to ask a solicitor (as Transpondia has suggested) to be sure. If it was still valid, then you would have still got permanent residence in February 2012, and then could have applied immediately for UK citizenship at that point (under current rules) because your husband was also British. That would have been the quickest way to UK citizenship for you.

Just because your husband became British, you can't just automatically switch from EU/EEA rules to UK rules without having been on the proper track in the first place. If you wanted to apply for ILR as the spouse of a British citizen after having lived in the UK for two years, you needed to have been on Limited Leave as such, by having first applied using FLR(M) two years before.

But you didn't do that. You've been on an EEA Family Permit. In that regard, your ILR application was rightfully refused. You had completed more than two years living in the UK, and yes, your husband is now a British citizen. But you were on the wrong path. You could only have applied for ILR had you been on the UK-rules path (i.e., FLR(M)) and you weren't. You were benefitting from EU/EEA provisions.

However, you were misinformed. Three times! Do you have any proof of this? Did you contact your MP and get a letter from the Home Secretary or the Minister of Immigration or the UKBA enquiry line saying that, yes, you could apply? I ask that because that will make a stronger case for an appeal. And if they do not grant your application, and they might not because it would be outside the rules, they should at least give you your money back.

I was in this situation in June 2008 when I was informed by the then-Home Secretary that I could apply for ILR. It's a long story, but I went through my MP to get that "yes-you-can-apply-now" letter, and after they refused me, I at least had the letter to say, "Hey! What gives?". I put in a complaint, and while they did maintain the refusal, they at least refunded my money. They admitted that they had made an error in saying to apply in June 2008 instead of June 2009. So the money came back, and I got ILR the following year with no problem.

One thing, though. You may now be delayed at UK passport control when you re-enter the country because of this refusal. It will pop up on your record, and for the first time at least, they will likely issue you with a IS81 while they investigate the refusal at the border. This is an annoyance, but you can complain through your MP to get that "red flag" removed from your file. Yes, this refusal is now permanently part of your immigration history, but the inconveniences associated with it (i.e., the fee and the delays at immigration) can be mitigated.

I hope that helps somewhat. I've been in a similar place as you, and it's not fun.
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bluerthanmonday
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« Reply #3 on: May 19, 2010, 04:21:13 PM »

It's strange that you were relying on UKBA for something so important.  Did you not get a feeling when you spoke to them that something was out of whack? 

Not at all, each person sounded certain, as if he knew what he was talking about. And nobody referred me higher up the ladder or even suggested I double-check.

The leading practitioner in this particular area would be, arguably, Andrew Tingley at Kingsley Napley.  Telling the secretary that you were referred from here *might* get you bumped up the queue, or it might not.   Smiley

Thank you very much. I will get in touch with him straightaway.
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bluerthanmonday
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« Reply #4 on: May 19, 2010, 04:25:13 PM »

My take on this is as follows:

If you were on the EEA Family Permit since February 2007, you would have been allowed to get permanent residence via that track in February 2012. Then, had your partner not become British, you would have been able to have applied for UK citizenship a year after that.

As you know, this all became more complicated after your husband became British. I don't believe that this cancelled your EEA Family Permit as he was still Swedish. But that is a question that you might want to ask a solicitor (as Transpondia has suggested) to be sure. If it was still valid, then you would have still got permanent residence in February 2012, and then could have applied immediately for UK citizenship at that point (under current rules) because your husband was also British. That would have been the quickest way to UK citizenship for you.

Just because your husband became British, you can't just automatically switch from EU/EEA rules to UK rules without having been on the proper track in the first place. If you wanted to apply for ILR as the spouse of a British citizen after having lived in the UK for two years, you needed to have been on Limited Leave as such, by having first applied using FLR(M) two years before.

But you didn't do that. You've been on an EEA Family Permit. In that regard, your ILR application was rightfully refused. You had completed more than two years living in the UK, and yes, your husband is now a British citizen. But you were on the wrong path. You could only have applied for ILR had you been on the UK-rules path (i.e., FLR(M)) and you weren't. You were benefitting from EU/EEA provisions.

However, you were misinformed. Three times! Do you have any proof of this? Did you contact your MP and get a letter from the Home Secretary or the Minister of Immigration or the UKBA enquiry line saying that, yes, you could apply? I ask that because that will make a stronger case for an appeal. And if they do not grant your application, and they might not because it would be outside the rules, they should at least give you your money back.

I was in this situation in June 2008 when I was informed by the then-Home Secretary that I could apply for ILR. It's a long story, but I went through my MP to get that "yes-you-can-apply-now" letter, and after they refused me, I at least had the letter to say, "Hey! What gives?". I put in a complaint, and while they did maintain the refusal, they at least refunded my money. They admitted that they had made an error in saying to apply in June 2008 instead of June 2009. So the money came back, and I got ILR the following year with no problem.

One thing, though. You may now be delayed at UK passport control when you re-enter the country because of this refusal. It will pop up on your record, and for the first time at least, they will likely issue you with a IS81 while they investigate the refusal at the border. This is an annoyance, but you can complain through your MP to get that "red flag" removed from your file. Yes, this refusal is now permanently part of your immigration history, but the inconveniences associated with it (i.e., the fee and the delays at immigration) can be mitigated.

I hope that helps somewhat. I've been in a similar place as you, and it's not fun.

London Lad, thanks for the detailed info. I doubt they will refund our money, but we will certainly try. And that's really good to know about UK Passport Control. I wonder if I should write my MP before I even leave the country again... ?
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bluerthanmonday
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« Reply #5 on: May 19, 2010, 05:27:37 PM »

It's strange that you were relying on UKBA for something so important.  Did you not get a feeling when you spoke to them that something was out of whack? 

The leading practitioner in this particular area would be, arguably, Andrew Tingley at Kingsley Napley.  Telling the secretary that you were referred from here *might* get you bumped up the queue, or it might not.   Smiley

P.S. - Transpondia, you were absolutely right. I've already been in touch with Mr Tingley and he is fantastic. Thanks again.
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Cadenza
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« Reply #6 on: May 19, 2010, 06:20:22 PM »

Let us know what happens.  I'm curious if you'll be able to get it changed.
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