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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7509
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hullo, After my last query,we successfully acquired an exceptional

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Hullo,
After my last query,we successfully acquired an exceptional leave to remain for 3yrs that is due to expire Jan. 2014......As of now a member of the family(daughter 11.5yrs) is already a british citizen( with passport). Since we are due to apply yet again,my daughter can not obviously apply alongside her siblings( we think?) so now what should the rest of the family be applying for, naturalisation,indefinate leave to remain or another extension and what forms should we be using for this procedure? Thnx in avance.
Paul
Hi Paul,

Is it correct to say that all of the family have received exceptional leave to remain, except for your daughter who has received British Citizenship?

Kind regards,

Tom
Customer: replied 3 years ago.

Ok, we all received exceptional leave to remain at the time, however after our daughter turned 8, she was eligible for naturaisation as a child born here and lived here since.......(am sure you know the legal bit that applies here) hence we processed her status accordingly.


Paul

Okay. Thanks, Paul.

Drafting your answer now. 5 mins please.

Kind regards,

Tom
Hi Paul

Thanks for your patience.

I see that in your previous answer you stated that you had been in the UK for a period of 13.5 years. The expert was quite correct in advising that you may have been able to apply for indefinite leave to remain 7 months after the question was original posted once you have reached 14 years. This would have been the best thing to do at the time.

Unfortunately, the rules on applying under illegal long residence have now changed. You can no longer apply on the basis of 14 years. It now has to be 20 years.

Your UK citizen child no longer needs to make any application for visas because she is a UK citizen and has an irrevocable right to remain in the UK due to this.

The rest of you will need to apply for a further visa. This is because in order to apply for ILR you have to either be eligible under the long residence rules or have spent the requisite amount of time in a category which allows you to apply for ILR.

In the circumstances, if there is no other traditional category of visa which you are eligible (eg. Tier 2 etc), then you will have to apply again for exceptional leave to remain. This is, as you know, an application outside of the immigration rules.

You would be arguing that you and your family should be granted further leave to remain on the basis your UK citizen daughter has a right to remain in the UK and to remove you would be contrary to your human rights under Article 8 Schedule 1 of the Human Rights Act 1998 as you have a right to a family and private life, so that you would be deprived of this right if you were removed from your child.

It’s a complicated application because it’s outside the immigration rules. Although, you will probably obtain further leave to remain I would still instruct a solicitor to act on your behalf.

If after obtaining further leave to remain on an exceptional basis and remaining on it you reach the 20 year period then you should apply for ILR on the basis of being here 20 years illegally.

You can apply for exceptional leave to remain by submitting UKBA form FLR(O) to the UKBA with supporting documentation, but as I have mentioned it really is something that you should consider instructing a solicitor to do.

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Kind regards,


Tom
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