What is the first commandment of UK Immigration Law? Never become an overstayer. Is that easier said than done? After years of practicing immigration law, we have come to realize and accept that people actually do ‘overstay’ for reasons beyond their control. However valid these reasons are, the first commandment remains set in stone, but there are tactical options available.
Overstaying means to remain in the UK beyond the validity period of your visa. In general, overstayers have a tendency to face a rejection of their subsequent visa application as overstaying constitutes a general ground of refusal.
Amongst the multitude of disjointed reasons for overstaying, there are several genuine causes of overstaying. A typical example may be a situation where an application was submitted in time but as a result of technical glitches, it was sent back as invalid as a result of the Home Office been unable to process the application fee or if a box had not been included in a mandatory box. This situation will most likely render the applicant an overstayer, having no valid leave.
In these types of scenarios, what we would normally do is to submit an application regardless, but in addition request the Home Office to exercise discretion and issue a further grant of leave.
Out of time applications
A law that doesn’t accurately and fairly cater for reality is definitely flawed. It is on this premise that the Home Office in 2012 amended the immigration rules to include a provision that allowed applicants not to fall under mandatory refusals, provided they applied within 28 days after their visa expiry date.
This provision created a much-needed buffer for applicants who for various reasons are not able to submit their application in time without putting their immigration status in jeopardy.
The amendment also ensured that if an application that was submitted within the 28 days grace period was successful, the applicant would still be regarded as one who has no adverse immigration history with regards to future applications.
A major requirement for applying for permanent residence or indefinite leave to remain is that the applicant must be able to show that he or she has been continuously and legally residing in the UK for a given period of time (05 years in most cases, 10 years on others). Prior to the amendments in 2012, in-country applications after the date of the visa expiration would automatically leave a gap, thereby breaking legal and continuous residence leaving then ineligible to apply for indefinite leave to remain. With the introduction of the 28-day grace period and knocking off of any overstayed period, it is indeed a welcome development.
Please note that that 28-day grace period is not the ultimate remedy in all cases. Activating the 28 days grace period denies the applicant from the benefits of ‘Section 3C Leave’.
Section 3C of the Immigration Act 1971 confirms that where an application for further leave to remain is made in time, the person’s leave will be deemed as continuing until the Home Office makes a decision on the application or all avenues of appeal have been exhausted. A practical example would be:- A Tier 2 application was submitted by a holder of a Tier 4 general before the date of the visa expiration, the terms of the Tier 4 visa will continue until a decision is made on the Tier 2 visa.
Summarily, an application submitted after the visa expiration date but within the 28 day grace period will not fall under general grounds of refusal; however they will not enjoy the benefits of Section 3C leave. This means that they will not have a right to work amongst other things until a decision is made on their application.
Invalid applications within the 28 days grace period
Where an application is returned as invalid, the applicant is able to re-submit within the 28-day grace period without becoming an overstayer. However, if the arrival of rejection notice leaves to time gap and uses up the entire 28-days grace period, the applicant is then deemed to be an overstayer.
There are several reasons for returning an application as invalid, some of which include applying with no passports, inability for UKBA to take the application payment, etc.
Our tips
- Never overstay your visa
- If you have overstayed your visa, ensure you apply within the 28 days grace period
- If your application is returned as invalid and leaves you time, we recommend that you meet with a qualified and regulated immigration solicitor.
