In most cases, a person who is currently classed as an ‘overstayer’ applies for a Spouse visa from within the UK is likely to have their application refused, because overstaying is treated as a breach of UK immigration law unless strict exceptions apply. For this reason, overstayers who wish to apply for a Spouse Visa are generally advised to leave the UK and apply from their home country, which may give them a stronger chance of success. Even then, it is important to understand your Spouse Visa application may still be refused if the period of overstaying is treated as a ‘previous breach’ of the immigration rules, particularly where an application is made during the mandatory refusal period (i.e. re-entry ban).
If you are still within the mandatory refusal period, it is generally better to wait until it has ended before submitting a Spouse visa application. The amount of time that you are under a re-entry ban will depend on the circumstances of your overstaying, as follows:
- 12 months – the person left the UK voluntarily and paid for their own departure
- 2 years – the person left the UK voluntarily at public expense within six months of being notified of liability for removal or when any appeal or administrative review ended, whichever was later
- 5 years – the person either left the UK voluntarily at public expense more than six months after being notified of liability for removal or left or was removed as a condition of a caution under section 22 of the Criminal Justice Act 2003, provided any return ban has expired
- 10 years – the person was removed from the UK at public expense or where the person used deception in an immigration application (for visit visas, this applies only to entry clearance applications).
Under some circumstances, overstaying may be disregarded (i.e. ignored) by the Home Office when making an out-of-country Spouse visa application. For example, if you left the UK voluntarily and not at the expense (directly or indirectly) of the Secretary of State, and the period of overstaying was:
- 90 days or less, where the overstaying began before 6 April 2017, or
- 30 days or less, where the overstaying began on or after 6 April 2017
In addition, the following is not treated as overstaying under the immigration rules either:
- An application for a Spouse visa was made within 14 days of permission expiring and there was a “good reason beyond the control” of the applicant or their representative (with evidence) why it could not be made in time
- A further application for a Spouse visa was made within 14 days of an in‑time application being refused, rejected, or after an appeal or administrative review window or process ended, or
- The period of overstaying fell within specified Covid‑19 concession periods or covered by an “exceptional assurance*”, or within certain dates for Hong Kong BN(O) or Ukraine routes.
If any these exceptions apply, the period is disregarded for suitability purposes and will not lead to the refusal of your Spouse visa.
*“exceptional assurance” refers to a written confirmation from the Home Office confirming that, for the period stated in the notice, the person will not be treated as an overstayer.
Exceptional circumstances for overstayers to apply for spouse visa in the UK
If you are currently an overstayer (i.e. your visa has expired and you have no other valid immigration permission to be in the UK), there are some very limited circumstances under which you may be able to make a successful application for a Spousal visa from within the UK. Specifically, if refusal would result in “unjustifiably harsh consequences” for you, your partner, your child, or other family members whose Article 8 (right to respect for private and family life) would be affected.
Furthermore, where an applicant has a genuine and subsisting relationship with a qualifying partner (British, settled, or with refugee/humanitarian protection) and there are ‘insurmountable obstacles’ to family life continuing outside the UK, a period of overstaying is likely to be overlooked. These exceptions may apply where, for example where:
- The British or settled partner cannot reasonably relocate because of serious disability, complex medical needs, or a need for specialist treatment not reasonably available abroad, or
- There would be very serious risks to the couple (or a relevant child) in the country of proposed relocation, going beyond normal hardship, such as persecution, extreme instability, or severe discrimination.
It is important to understand that the bar is set very high when it comes to proving that unjustifiably harsh consequences would exist in the event of a spouse visa refusal. The Home Office will want to be satisfied not just that there could be unjustifiably harsh consequences, but that there definitely would be unjustifiably harsh consequences.
These routes are heavily evidence‑driven and often require:
- Detailed medical or expert evidence about health, disability, or special needs
- Country‑expert or human‑rights evidence on risks abroad, and/or
- Strong proof of the relationship, including involvement with any children.
Because it is very difficult to prove that an exception should apply and that a period of overstaying should be ignored when making an in-country Spouse Visa, it is advisable to consult an immigration lawyer to ensure you have the greatest chance of success. To speak with one of our lawyers, call 020 3744 2797 or complete our enquiry form.
References:
GOV.UK: Applications from overstayers
