Applications from overstayers 

This article is written by Mr Shahzad Tariq, Immigration solicitor. Mr Tariq is the Head of Immigration and Litigation at West London Solicitors. You can contact Mr Tariq directly on tariq@westlondonsolicitors.com

The starting point

The Immigration Rules are a good starting point, under its interpretation “overstayed” or “overstaying” means the person has stayed in in the UK beyond the latest of either:

• The time limit attached to the last permission granted; or
• The period that the permission was extended under section 3C or 3D of the Immigration Act 1971.

Grace period to make the application

The Immigration Rules were amended with effect from 24 November 2016 to abolish the 28 days grace period, under which applications for leave to remain were not refused based on overstaying if made within 28 days of the expiry of leave. The current application rule permitting exceptions for overstayers is found in paragraph 39E of the Immigration Rules. The current grace period is 14 days however this consideration period is subject to the applicable provisions within immigration rule 39E which states:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal or rejection of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal or rejection of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or

(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or

(3) the period of overstaying was between 24 January and 31 August 2020; or

(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021; or

(5) the period of overstaying:

(a) is between 1 September 2020 and 28 February 2023; and

(b) is covered by an exceptional assurance.

 39F. For the purpose of paragraph 39E(5),“exceptional assurance” means a written notice given to a person by the Home Office stating that they would not be considered an overstayer for the period specified in the notice.

Calculating the date the period of overstaying begins

The Home Office guidance states that the caseworker must calculate the date on which the period of overstaying begins based on the last day of the migrant’s latest grant of leave or when leave under section 3C or 3D has ended.

Your status following submission of an application within 14 days of overstaying

The submission of an application within the 14-day consideration period of overstaying does not mean that the applicant’s previous leave is either reinstated or extended. Therefore, an applicant without valid leave at the point they submit their application continues to be an overstayer from the point their leave expired and throughout the period their application is pending. As the applicant has no leave during the period their application is pending, they have no permission to work in the UK.

Note: The author acknowledges that the source of information is https://www.gov.uk/ website. Additionally, the article contains public sector information licensed under the Open Government Licence v3.0.

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