Applying for Entry Clearance after a Period of Overstaying - Paragraph 320(11)
In recent years it has become increasingly difficult for those who have overstayed to successfully apply for further leave to remain in the UK on the basis solely of their relationship with a partner in the UK. Last year, in the case of R (on the application of Jennifer Kerr) v. SSHD IJR  UKUT 00493 (IAC) the Upper Tribunal firmly set out the prospects of success for individuals in these circumstances:
'where an applicant has abused the immigration rules and has formed a relationship in circumstances conventionally described as being "precarious", there is a sound reason for requiring the applicant to make an out-of-country application as she would be required to do were she not to be unlawfully in the United Kingdom. If there is no evidence that any undue hardship will be caused by exercising this option, there is little that can be said to be disproportionate.'
The entry clearance option
For many individuals, the best option now will be to return to their country of nationality or residence and make an application for entry clearance to stay with their partner. This may not be the worst of options.
First, by taking this route, partners can straight away enter the five year route to settlement in the UK, which means that they will need to make less applications overall and can settle in the UK quicker than they otherwise could.
Second, the period of separation may not be as long as one might expect. Application processing times vary between different application centres, but some centres offer a priority processing service, which can speed the process up (subject to eligibility for the service).
If you are willing to endure a separation from your partner, the Entry Clearance route may be the best option for you. But, if you have overstayed, how will your Entry Clearance application be viewed by UKVI and is there a risk that you will be separated from your UK family indefinitely?
General grounds for refusal
For family based applications, many of the general grounds for refusal will not apply. This means that providing you are making an application as a spouse, fiancee, unmarried partner or parent, you will not be caught by any of the mandatory bans that might be applicable if you were to submit an application in a different category.
There is, however, a discretionary ground for refusal which may apply. This is found at paragraph 320(11) of the Immigration Rules and provides that:
'where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or
remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and
there are other aggravating circumstances, such as absconding, not meeting
temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the redocumentation process.'
There are essentially three parts to this rule which must apply before your application can be refused.
First, you must have overstayed, breached a condition, entered the UK illegally or used deception.
Second, there must be something which aggravates this. This means that simply overstaying on its own will not provide a sufficient reason for your application to be refused. If you have failed to attend reporting appointments or have been required to reside in a particular address and move without telling the Home Office, you are likely to be found to have aggravating factors.
Third, the ECO must consider if the threshold for refusal has been met. This will involve a consideration of all of your circumstances, including your family life, and the effect on third parties, such as your partner in the UK.
There is also case law which states that individuals who choose to return to their country in order to apply for entry clearance specifically to regularise their status should be given credit for taking this step.
Prospects of success
Your chances of being successful will depend on your individual circumstances, the extent of your overstaying and how and over what period you have had aggravating circumstances. It is important that any application that you make is well prepared so that you can address all of the ECO's potential concerns about your previous conduct.
If your application is refused, you will have a right of appeal to an independent Immigration Judge in the UK who will make a fresh decision on your case, taking into account all of the factors in your case. If you have to go to an appeal, this will inevitably cause a prolonged period of separation from your partner in the UK, but generally your chances of successfully resolving your immigration matter will be better in front of an Independent Immigration Judge rather than with the Home Office.
For assistance with an application or appeal or advice on your options following a period of overstaying, please contact our specialist immigration barristers on 0203 617 9173 or firstname.lastname@example.org.