Turning the page of OTB Legal Immigration book for indefinite leave to remain

October 6

Deprived Citizenship: Indefinite Leave to Remain

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OTB Legal

Can I apply for indefinite leave to remain if I have just been deprived of my British citizenship on grounds of fraud or deception? 

It used to be very unusual for the Home Office to deprive British citizens of their citizenship. Nowadays, however, it is becoming increasingly common for the Secretary of State to exercise her powers to take away a person’s British citizenship.

Before 2000 almost no one was subject to these powers. Over the years the numbers have steadily increased. Over the period of 2017 – 2020 we know the following number of people to have been deprived of citizenship on grounds of fraud / deception:

Year

Number of Deprivations due to Fraud

2017

44

2018

52

2019

82

2020

42


What happens when someone is deprived of their citizenship on grounds of fraud?

When the Home Office is considering depriving someone of their citizenship on grounds of fraud, they will give that person an opportunity to write to them and give reasons why they should not be deprived of their citizenship first. After considering those representations the Home Office will then go on to make a decision about whether they will deprive the person of citizenship or not.

If a decision to deprive is made, a person will have a right of appeal. These types of appeals can be complex, so it is important for a person to obtain legal advice on whether they have grounds to challenge the decision or not.

If a person decides not to appeal or they are unsuccessful with their appeal, the Home Office will usually take the following steps:

Action

Timescale

Sign a deprivation order

Within 4 weeks of appeal rights being exhausted

Make a decision on whether to grant a person leave to remain or remove them

Within 8 weeks of the deprivation order being signed

Again, a person will usually be invited to provide reasons why they should be allowed to remain in the UK before a decision is taken. If the Home Office decides to grant leave to remain, then they will normally grant a period of 2 ½ years discretionary leave to remain on the ’10 year route’ to settlement, and the person will not have recourse to public funds.

Can I apply for Indefinite Leave to Remain straight away?

It may well be possible for a person to apply for indefinite leave to remain immediately after being granted discretionary leave to remain for 2 ½ years. Our Personal Immigration Team have assisted a number of clients with successful applications for indefinite leave to remain in this situation.

It may be possible to apply for indefinite leave to remain in the following situations:

You have lived lawfully in the UK for more than 10 years

We have had some success in the past with obtaining indefinite leave to remain for clients on the grounds of long residence where they have completed 10 years lawful residence, however recently the Home Office have consistently rejected those applications. We are therefore not recommending that clients make applications for indefinite leave at the current time on this basis unless there is some unusual factors that apply to their circumstances. This position will be reviewed if there is any update in the approach or law with respect to these types of applications.

You are the family member of an EU national

Another option may be to apply under the EU Settlement Scheme as the family member of an EU national who has completed 5 years residence. The EU Settlement Scheme are likely to still accept applications from someone who has a good reason for not having applied earlier (for example they were British and could not have applied before being deprived of citizenship).

Are there alternative options so that I can apply for indefinite leave to remain sooner?

Usually when someone is deprived of their citizenship, they are granted 2 ½ years leave to remain on the 10 year route to settlement. Another option may be for a person to apply to switch from the 10 year route that they are on, to a 5 year route to settlement. This might be possible, for example, if you are married to someone who is a British citizen or has indefinite leave to remain.

These types of applications are not always straightforward as the Home Office still have discretion to refuse applications to switch to the 5 year route where a person has exercised deception in a previous application. However it may be a good option for someone who wishes to qualify for indefinite leave to remain at an earlier stage.

We can advise and assist you with making this type of application. If you are wishing to switch to the 5 year route it is usually beneficial to make this application straight away as any time spent on the 10 year route will not count towards the 5 years needed to obtain indefinite leave to remain.

Advice

If you would like advice on your circumstances then please contact Mark Lilley-Tams at [email protected] who is an experienced immigration Solicitor and has represented many clients subject to deprivation of citizenship action. In Chambers and Partners, Mark was described as follows:

Mark Lilley-Tams is a seasoned immigration partner with significant expertise across personal immigration. He is best known for his work on nationality matters and often handles complex deprivation of citizenship cases, as well as judicial reviews.”

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