According to the Cambridge Dictionary, ‘to overstay’ means to stay longer in a place than you are allowed or wanted.
Any person with leave to enter or remain in the UK (‘visa’) has various conditions imposed on their stay in the UK. Also, unless it is indefinite leave to enter or remain, there will usually be a time limit imposed on their stay. Before the expiry of their leave, a person can either extend their leave (if this is permitted by the rules) or leave the UK.
Anyone who does not extend their leave and remains in the UK after the expiry of their visa will become an overstayer. ‘Overstaying’ has severe adverse implications on a person’s immigration status and should be avoided at all costs.
Grace Periods Before and After 24 November 2016
Before 24 November 2016, the Home Office there was a 28-day grace period. In practice, this means that applications for leave to remain were not refused on the basis of overstaying if made within 28 days of the expiry of leave. This is no longer the case.
After 24 November 2016 overstaying will be disregarded in a very limited number of scenarios but otherwise will be considered as a ground for refusal.
Overstaying Will Be Disregarding in Two Circumstances
First of all, overstaying will be disregarded if 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 it could not be made in time, provided that the application is made within 14 days of the expiry of leave.
Secondly, overstaying will be disregarded where the applicant previously made an in-time application which was refused, and the current application was made within 14 days of:
- the refusal of the previous application for leave
- the expiry of any leave extended by section 3C of the Immigration Act 1971
- the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable)
- any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
What is Section 3C Leave?
The purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to be pending.
When section 3C applies?
A person will have section 3C leave if:
- they have limited leave to enter or remain in the UK
- they apply to the Secretary of State for variation of that leave
- the application for variation is made before the leave expires
- the leave expires without the application for variation having been decided
- the application for variation is neither decided nor withdrawn
- an in-country appeal could be brought (ignoring any possibility of appeal out of time with permission)
- the appeal is pending (within the meaning of section 104 of the Nationality, Asylum and Immigration Act 2002), meaning it has been lodged and has not been finally determined.
- an administrative review could be sought
- the administrative review is pending, in that it has not been determined
- no new application for leave to remain has been made
A Good Reason Beyond the Applicant’s Control
According to the Home Office guidance, if, within the 14 day consideration period, the applicant submitted details of circumstances beyond their control that prevented them from seeking leave, these should be considered.
Caseworkers must give thought to:
- the plausibility of the reasons
- whether the reason was genuinely outside the applicant’s control or whether the applicant is describing difficulties that could realistically have been surmounted
- the credibility of evidence provided
Caseworkers must decide each case on its merits, but examples of reasons that might be considered beyond the control of applicants are:
- the applicant was admitted to hospital for emergency treatment (evidenced by an official letter verifying the dates of admission and discharge and the nature of the treatment)
- a close family bereavement
- an educational institution was not sufficiently prompt in issuing a Confirmation of Acceptance for Studies (CAS)
There are long-term severe consequences for those, who become overstayers without a good reason. A person will be banned from re-entry for at least 1, 2, 5 or 10 years (unless this is an Appendix FM application). Also, all future applications may be refused on discretionary grounds for refusal due to a person’s previous immigration history.
Therefore, do ensure that you always extend your leave to enter or remain on time!