From Overstaying to Settlement: ILR Granted for a Mother and Her Son Under Appendix FM
There are few moments more worrying for a family than the one in which they realise their permission to remain in the United Kingdom has expired. Years of lawful residence, a marriage and a child’s education can appear to rest on a single missed date.
We are delighted to share the success of a recent Indefinite Leave to Remain (ILR) application granted under Section R-ILRP of Appendix FM, the five year partner route to settlement, for both our client and her dependent child.
Overstaying is normally fatal to a settlement application. In this case, our client’s leave as the spouse of a British citizen had expired approximately five months before the application was submitted. On paper, it should have failed at the first eligibility requirement. Instead, both applicants were granted settlement.
Our Clients’ Circumstances
Our client is married to a British citizen and had already completed more than 60 months’ continuous leave as a partner under Appendix FM. Her son had held leave in line with his mother throughout, had spent the formative years of his childhood here and was in full time education in the UK.
On the substance, the application was strong. The genuine and subsisting marriage, continuous cohabitation, the financial requirement under Appendix FM-SE, adequate accommodation and both limbs of Appendix KoLL were all comfortably met, and with no criminal record or adverse immigration history, suitability under Section S-ILR was never in issue.
The single difficulty was timing. Our client had been prevented from applying within the deadline by a serious illness requiring hospital treatment, which affected her precisely during the period in which the application should have been prepared, and which was compounded by an acute family crisis at the same time. This was not a client who forgot a date or chose to take a risk. She was simply unable to act.
The Obstacle: Overstaying and Paragraph 39E
Applicants often assume that the “14 day rule” is a general amnesty for late applications. It is not.
Paragraph 39E of the Immigration Rules allows a period of overstaying to be disregarded only where the application is made within 14 days of leave expiring and there is a good reason beyond the applicant’s control for the delay. Paragraph E-ILRP.1.2 otherwise requires valid leave as a partner at the date of application.
A five month delay falls well outside that window, so the case could not rest on paragraph 39E alone. We put the application on three cumulative bases:
- An invitation to the Secretary of State to exercise general discretion and disregard the overstaying, applying the same “good reason beyond the applicant’s control” principle that underpins paragraph 39E and the published family life guidance;
- In the alternative, paragraph GEN.3.2 of Appendix FM, requiring consideration of whether refusal would produce unjustifiably harsh consequences in breach of Article 8 ECHR;
- The best interests of the child under section 55 of the Borders, Citizenship and Immigration Act 2009.
How We Approached the Case
We raised the overstaying ourselves. It was addressed openly, in its own section of the covering letter, with the dates set out. A caseworker who discovers an unexplained gap reads everything that follows with suspicion. A caseworker who is told about it at the outset, with the evidence attached, is assessing an explanation.
We evidenced the reason rather than asserting it. Applications relying on ill health usually fail because the evidence is a short letter written long after the event. We instead obtained the underlying medical records directly, which showed independently and contemporaneously that our client was under active hospital care throughout the relevant period. Sensitive material was included only so far as it was necessary to explain the delay.
We showed that she acted the moment she was able to. Our client sat and passed the Life in the UK test and instructed solicitors on the same day, as soon as her condition allowed. Delay is rarely forgiven on its own. Delay followed by demonstrable urgency is a very different matter.
We ran a full alternative case. Under paragraph GEN.3.2 we relied on the long established family life with a British citizen spouse, conditions in the country of return which remains affected by armed conflict, the best interests of a teenager whose whole education and social life are in the UK, the need for continuity of medical treatment, and nearly six years of complete compliance with no recourse to public funds.
The Child’s Application
Our client’s son applied for settlement in line with his mother. As a matter of the Rules his application stood or fell with hers, but on the Article 8 analysis his case was the stronger of the two, and we argued it in its own right. His connection to his country of nationality was one of passport alone. His home, his school and his family unit, including the step father he treats as a parent, are here.
The Outcome
The Home Office granted indefinite leave to remain to both applicants.
Our client and her son are now permanently settled in the United Kingdom, free of immigration conditions. She can continue the treatment she depends on, and he can complete his education, without the uncertainty that has hung over this family for the better part of a year.
Why This Case Matters
A serious procedural difficulty is not the same thing as a hopeless application. What made the difference was method: recognising that paragraph 39E could not carry the case, naming the problem before the caseworker found it, evidencing the reason for the delay through independent records rather than assertion, and running the Rules based case and the human rights case together so that the Secretary of State had more than one lawful route to a grant.
If your leave has expired, or is about to, the most valuable thing you can do is take advice quickly. Inside the 14 day window the position is considerably more straightforward. Outside it, everything turns on discretion, and discretion has to be earned on the evidence.
