When do you become and overstayer? How can you avoid being an overstayer? And crucially, what is the long-term impact of overstaying in the UK in terms of future applications?
‘Overstayer’ is a word used frequently by persons in the UK and otherwise; it is crucially often misunderstood and incorrectly used.
A person that ‘overstays’ their leave to enter or leave to remain in the UK remains in the UK without the right to be here. There is an important distinction between people that have remained in the UK but made an application for leave to remain prior to their existing leave ending, and those that have made no application.
Applicants who have applied an extension
Persons with valid leave in the UK who make an application to extend their leave prior to it expiring, have their leave extended under 3C of The Immigration Act 1971. It is very important that that application for further leave is made prior to their leave expiring and that no decision is reached on the application before the leave expires, in order to benefit from the provisions of 3C. If that application is granted, then there will be no break in the persons leave to remain. If the application is refused and an Applicant appealed the refusal (provided they had a right of appeal) then leave would continue to be extended until that appeal was determined.
Consequences of overstaying
So, what actually happens if you overstay? The implications of overstaying have changed over the years as the “Immigration Rules” have toughened. The current position is that overstaying is not allowed unless there is ‘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.’ Even then, these good reasons only allow for an application to made within 14 days of expiry of leave. The provisions are contained within 39E of the Immigration Rules and also allows for a new application to be made within fourteen days of:
(i) the refusal 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 (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
It is worth noting that whilst this has been the law since 24 November 2016, prior to that date applicants had a 28-day grace period following overstaying leave in which to make an application. It is important to note this date, as it could be relevant, particularly if you are required to calculate periods of lawful residence.
Overstaying leave can be detrimental to future applications to come to the UK. Perhaps a little confusingly, this does not have the same effect on all applications. Human rights applications, so those under Appendix FM of the Rules or outside of the Rules, will not be refused from previous overstaying alone, aggravating features of the overstaying would be required.
However, if a person applied for leave to enter the UK under other provisions of the Immigration Rules, having previously overstayed in the UK in excess of 30 days post 6 April 2017, or for more than 90 days prior to that, then it is highly likely that an application for entry clearance would be refused unless the relevant period of time had passed. This period of time that must have passed can range from twelve months to ten years in serious circumstances.
Need immigration support?
For a review of your immigration history to determine your chances of success in a future immigration application within or outside the UK, please contact one of our immigration lawyers who can discuss this with you.