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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
Satisfied Customers: 13323
Experience:  Solicitor
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Resolved Question:

I came to UK on a student visa in 2007 to pursue a postgraduate degree at Oxford. My visa length was till January 31, 2010. Before my visa expired, I applied for visa extension before January 31, 2010 and chose to make the payment through my debit card. Even though I had the money in my account, my bank did not allow the payment to go through becuase they apply some kind of a "check" on my account that does not allow large sums of money to be debited out via the debit card. This is for fraud prevention.

Owing to the payment trouble my visa application was turned down and I was intimated on February 19. For the new visa application I needed to get the CAS number and the visa application was posted through the auspices of the university on March 1. Hence, I had overstayed my visa for a few weeks. My second visa application was accepted and now my student visa extends till 2011. I will apply for an extension at this point.

However my query is different. I want to settle in the UK and would like to apply for ILR and British citizenship in future. I have heard that 10 years of lawful stay might qualify me for ILR. So at some point in 2017, will I be able to apply for ILR through the 10 year lawful stay route even though I overstayed my visa owing to circumstances beyond my control. Will I be able to make an appeal to the HO telling them that I had no intention of overstaying my visa (I made the visa extension application before January 31) and the overstaying took place due to circumstances beyond on my control. And will I be able to apply for ILR through 10 year legal stay route?
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 5 years ago.
Hi Thanks for your question. In order to qualify under the 10 year rule you have to have 10 years continuous lawful residence. The Border Agency guidance is that a single short term break in lawful residence due for example to a late application can be ignored at their discretion. So you would under the current rules probably be able to apply for ILR in 2017. As your late application was granted you should be ok but you will need to explain the short break. If that is granted you can apply for citizenship 12 months later.

I would however make a number of comments. First you have to remain here lawfully and that means finding an appropriate basis of stay . If for example you get a work visa it is likely that you will be able to apply for ILR before 2017. Normally you cane do it after 4 years on a work visa.

You should however also bear in mind that the rules are currently being reviewed and there is a lot of political focus on immigration at the moment so there is no guarantee the rules will remain the same.

Finally if you are able to apply in 2017 please do not say the overstaying "was beyond your control" . It will not go down well. Just explain it was a mistake. It is ultimately your responsibility to ensure everything is done on time including payment and you could have checked both the rules about the Debit card and if payment had been made etc . I realise you were relying on your bank but so far as the Border Agency is concerned it is up to you to ensure they get paid.

Good luck
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