By Danica Westaway
Overstaying in the UK refers to the scenario wherein an individual remains in the UK beyond the expiry of their original grant of leave.
In terms of paragraphs A320 and 320(7B) of the Immigration Rules, a person whose grant of leave has expired and who hasn’t applied for leave to remain before the expiry, has 30 days from the date of expiry within which to remove themselves from the UK voluntarily.
The Home Office will still consider such a person as an overstayer during this 30-day period.
What are the Repercussions of Overstaying in the UK?
Section 24 of the Immigration Act 1971 establishes overstaying in the UK as a criminal offence.
Accordingly, an overstayer potentially faces various repercussions. This may include a fine, imprisonment, deportation and/or a re-entry ban. This will depend on the amount of time the individual has overstayed their leave.
Pending Applications
Where an individual applies for leave to remain prior to the expiration of their original grant of leave, but the grant of leave expires whilst they are awaiting a decision in respect of their application, such an individual is prevented from becoming an overstayer. This is by virtue of the extension of their leave in terms of section 3C of the Immigration Act 1971.
Section 3C also applies where an individual has lodged an appeal or application for administrative review to which they are entitled and in respect of an application for leave to remain that was refused but lodged timeously.
Applying for Leave to Remain After Expiry of Your Visa
When applying for leave to remain in the UK after the expiry of the original grant of leave, overstaying is a ground for refusal of such application. Section 3C does not apply. As of 24 November 2016, overstayers are no longer afforded a period of 28 days from the expiry of their visa to make an application for leave to remain.
In terms of paragraph 39E of the Immigration Rules, overstaying will only be disregarded where:
- The application is made within 14 days of the expiration of the original grant of leave. Furthermore, the circumstances where the tardiness of such an application was beyond the control of the applicant or
- A timeous application for leave to remain has been refused. A further application has been made within 14 days of
- a) such refusal,
- b) the expiry of any leave extended by section 3C,
- c) the expiry of the time limit prescribed for purposes of lodging an administrative review or appeal, or
- d) the conclusion, withdrawal, abandonment or lapse of any administrative review or appeal.
Overstaying in the UK – Circumstances Beyond Control
In guidance published for the Home Office staff, with regard to submissions made by the applicant in relation to the tardiness of the application being beyond the control of the applicant, caseworkers are advised as follows:
To consider “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 [and] the credibility of evidence provided”.
The Home Office will decide every case on its own merits. However, compelling reasons for a tardy application for leave to remain may include admission to a hospital for emergency treatment or the death of a close family member. Another reason may be the delayed issuance of a Confirmation of Acceptance for Studies by an educational institution (in the case of a student visa).
Pending Applications within 14 days
While an applicant may submit their application for further leave to remain within the 14-day period, such an applicant will still be an overstayer. This will be throughout the period that their application is pending.
They will not have permission to work in the UK while a decision on their application remains outstanding. Applicants will find it difficult to find an employer willing to overlook this. The reason for this is with Section 21 of the Immigration, Asylum and Nationality Act 2006. This section establishes that an employer who knowingly employs an overstayer is guilty of a criminal offence.
How Breytenbachs can help you
It is vitally important to keep track of the expiration date applicable to your grant of leave. Keeping track will ensure that you lodge a viable application for leave to remain before such expiration. For reliable assistance in this regard, contact Breytenbachs Immigration Consultants to ensure that you do not become an overstayer!
If you are overstaying in the UK, we also highly recommend that you get in touch without delay. Breytenbachs might be able to assist under certain circumstances.
