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28-day grace period for overstayers abolished

Changes to the Immigration Rules introduced today abolish the 28-day grace period for the consideration of applications for further leave to remain where an applicant has overstayed and replace it with more restrictive provisions. The changes, introduced by Statement of Changes to the Immigration Rules HC667, apply to applications made on or after 24 November 2016.

28-day grace period reduced to 14 days

Under the rules in force before 24 November 2016, if an individual did not apply for further leave before their leave expired, the Home Office would still accept an application for further leave, provided that it was made within 28 days of the leave expiring.

For policy reasons, this ‘grace period’ has now been abolished – at least in relation to applications submitted from today. Instead, the rules now provide that an application will only not be prejudiced if it has been made within 14 days of the expiry of leave.

In addition, there must be good reason for the delay. The application will only be considered if ‘the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative’ as to why the application was not made in time.

At the time of writing it is unclear as to what circumstances will fall within the remit of ‘good reason’.

Section 3C of the Immigration Act 1971

This amendment to the ‘grace period’ will also alter the way in which leave under section 3C of the Immigration Act 1971 is calculated. Under s.3C, if an individual applies for an extension of leave, appeals a Home Office decision or requests an administrative review of a decision, their leave is considered to continue until that decision is made or the individual leaves the UK. Under the old immigration rules, those living in the UK under s.3C were also eligible for the 28 day ‘grace period’, and under the new rules, this reduces to 14 days.

Indefinite leave to remain

This could have been problematic for individuals who wished to eventually apply for indefinite leave to remain. In order to be eligible to apply, an individual must have, at the very least, five years continuous legal residence. Any gaps caused, for example, by an overstay, could jeopardise this requirement.

For this reason, changes have been made to the way in which indefinite leave is calculated. If, before 24 November 2016, an individual relied on the ‘grace period’ and made their application between day 15 and 28 after their leave expired, this will not affect their right to apply for indefinite leave to remain. For applications made after 24 November 2016, the new rules will apply, and any application must be made within 14 days.

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