Overstaying Your Visa in the UK

Overstaying Your Visa in the UK

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 the rules permit) 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. You should avoid becoming an overstayer at all costs.

Grace Periods Before and After 24 November 2016

Before 24 November 2016, there was a 28-day grace period. In practice, it meant that the UKVI did not refuse applications if the applicants made their new applications within 28 days of the expiry of leave. This is no longer the case.

After 24 November 2016 the Home Office will disregard overstaying in a very limited number of scenarios. Otherwise, overstaying will trigger the refusal of a visa because of failure to meet the suitability requirements.

 

Overstaying Will Be Disregarding in Two Circumstances

First of all, the Secretary of State will disregard overstaying if she considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the applicant couldn’t make their application in time. It is provided that they make such an application within 14 days of the expiry of leave.

Secondly, the decision-make will disregard overstaying where the applicant previously made an in-time application and they refused it, and the applicant made their current application 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• any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.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.  Consequently, they can remain in the UK lawfully if they are awaiting a decision on that application and while any appeal or administrative review is pending.

 

Overstaying Your Visa in the UK

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
• when the applicant made their application for variation before the expiry of their previous visa
• when the applicant’s leave (visa) expired, but the UKVI did not consider the new application yet
• the Home Office neither decided nor withdrawn the application for variation
• a person can bring an in-country appeal (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). In other words, when the appellant lodged the appeal but the First-Tier Tribunal has not reached its decision yet.
• the applicant can apply for an administrative review
• the administrative review is pending, in that it has not been determined
• the applicant has not made a new application for leave to remain

 

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, the UKVI should consider them.

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. However, below are the examples of ‘beyond control’ circumstances:

• the applicant was admitted to hospital for emergency treatment. In this case, they’ll need to provide 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)

 

Consequences

There are long-term severe consequences for those, who become overstayers without a good reason. The Home Office will ban a person from re-entry for at least 1, 2, 5 or 10 years (unless this is an Appendix FM application). Also, they may refuse all future applications 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!

 

Further Help

And finally, if you are thinking of submitting a visa application, you will significantly increase your chances for success by understanding the rules and the process of your visa application. I, therefore, created a number of online courses to help you do exactly that. Knowledge will give you confidence and may help avoid refusal. For more information about the courses CLICK HERE.