Overstaying and applying for further leave to remain
When it comes to overstaying, prevention is better than cure. Overstaying in the UK is a criminal offence, and without leave in the UK, you do not have the right to study or work and you are at risk of removal. You are also exposed to the UK’s ‘hostile environment’ for overstayers, which means restrictions on the ability to rent accommodation, open a bank account, drive and access medical treatment.
It is always preferable to take action in advance of your visa expiring if you wish to remain in the UK. However, you can also become an overstayer in other ways, such as failing to act quickly after an in-country application is refused, or if your in-country application is rejected as invalid.
In this blog post, we take a look at the situations in which overstayers may be able to apply for further leave to remain in the UK.
My leave has expired. Can I apply for leave to remain in the UK?
If your visa expires while you are still in the UK, you will immediately become an overstayer. As an overstayer, you are in breach of UK immigration laws. This is a ground of refusal for most types of application.
However, there is an exception contained at Paragraph 39E(1) of the Immigration Rules. This exception means that you may still be able to make an application for leave to remain, subject to both of the following conditions:
- you must make the new application within 14 days of the expiry date of your previous grant of leave;
- you must have a good reason why the application could not be made on time.
You must meet both of these conditions in order to make an application. This means that, even if you have a good reason for delay, you still only have 14 days from the expiry of your previous grant of leave to make your new application.
When considering whether you have a “good reason” for submitting your application late, the Home Office will consider:
- the plausibility of the reason;
- whether the reason was outside your control, or whether it was a difficulty that could realistically have been surmounted;
- the credibility of the evidence that you provide.
Examples of “good reasons” that the Home Office provide in their guidance include being admitted to hospital for emergency treatment, a close family bereavement, or a delay from an educational institution in issuing a Confirmation of Acceptance for Studies (CAS) certificate. If you forgot about your deadline, or were busy with work or studying, this is very unlikely to be considered a good reason which was beyond your control.
Do I stop being an overstayer once I submit my new application?
No – even if you apply with a good reason within 14 days and your application is granted, you will still have been an overstayer during the intervening period between your two grants of leave. The exception just means that your overstaying will be disregarded when your new application is being considered, and so it will not be a reason for your application to be refused. However, the overstaying will not have fallen away.
Your period of overstaying lasts from the expiry date of your previous grant of leave up to the start date of your new grant of leave (not the date that you submitted the new application).
I made an application in time but it was refused. How long do I have to make a new application?
If you make a valid application in time (i.e., before the expiry of your previous grant of leave) and this application is refused, the timing for making a new application will depend on whether you are given a right to administrative review, or a right to appeal, or no right to challenge the decision through either method. It is important to note that in any case, you will be making this application as an overstayer. However, you would still be able to make a new application under Paragraph 39E(2) of the Immigration Rules, which provides another exception for overstayers who applied on time but whose applications are refused.
Refusals with a right to administrative review
If your refusal comes with a right to administrative review, you can make a new application within 28 days of the date that the refusal was sent. When you make an application on time, your leave is automatically extended by Section 3C of the Immigration Act 1971 while you are still waiting for the decision. If you receive a refusal decision, your leave is then extended by Section 3C again for 14 days after the date of the refusal. The deadline to apply for administrative review will be 14 days after the date of refusal, so this 14-day buffer is to give you time to lodge an application for administrative review, should you wish to do so. Your leave extended by Section 3C will end after 14 days.
If you do not want to apply for administrative review, you will have another 14 days after the end of your leave extended by Section 3C within which to make a fresh application. This second 14-day period is allowed for under Paragraph 39E(2).
Therefore, if you receive a refusal decision with a right to administrative review, you have 28 days in total from the date of refusal in which to make a fresh application. Whether you make a new application during the first 14-day period during which your leave is still extended by Section 3C, or during the second 14-day period during which you can apply under Paragraph 39E(2) of the Immigration Rules, you will still technically be applying as an overstayer. This is because as soon as you make a fresh application, your leave extended by Section 3C will be deemed to have ended on the day before the application is made.
Refusals with a right of appeal
If your refusal comes with a right of appeal, your leave extended by Section 3C will last for another 14 days from the date of your refusal decision. In a similar way to refusals with the right to administrative review, this 14-day extension is to allow you to lodge an appeal, should you wish to do so.
However, the difference with refusals with a right of appeal is that, if you wish to make a new application rather than to appeal, you will not be able to make a new application during this first 14-day extension period. Instead, you would have to wait until 14 days have passed and your leave extended by Section 3C has expired.
You would then be able to make a fresh application as an overstayer, under Paragraph 39E(2) of the Immigration Rules. This provision gives you a second 14-day period in which you can make an application.
Therefore, if you have a refusal with a right of appeal but you wish to make a new application instead of lodging an appeal, you must wait 14 days from the date of refusal until your Section 3C leave ends, but then be sure to make the application within 28 days of the date of refusal, so that you are still able to apply under Paragraph 39E(2) of the Immigration Rules. If you do so, then your period of overstaying will be disregarded.
Unlike with applications made after your leave has expired, if you are applying after a refusal decision on an application that was made in time, you are not required to have a “good reason” for the delay, as long as you apply within 28 days of the refusal decision.
No in-country right of appeal or right to administrative review
If your application is refused with neither an in-country right of appeal nor a right to administrative review, your leave will not be extended by Section 3C beyond the date of refusal. This is because you will not require the buffer period to lodge an appeal or apply for an administrative review. You will have to make an application as an overstayer, and will only have 14 days to do so under Paragraph 39E(2) of the Immigration Rules.
I made an application in time but it was rejected as invalid. Can I make a new application for leave to remain?
If you make an application in time but it is not a valid application in accordance with Paragraph 34 of the Immigration Rules (for example, because there has been an issue with the fee payment), the Home Office should contact you to give you the opportunity to correct this. You will have ten business days to correct the error. Because now almost all applications are made online, the incidence of invalid applications should be very low.
If you do not use this opportunity to correct your application, then it will be rejected as invalid and the Home Office will not decide it. Instead, they will issue a Notice of Invalidity. In this case, it is as if the application had never been made, and so your previous grant of leave will not have been extended by Section 3C. You will be an overstayer, and your period of overstaying will begin on the expiry date of your previous grant of leave.
By the time you receive the Notice of Invalidity, you may have overstayed by more than 14 days (although this will depend on how early you made your application before the expiry of your previous grant of leave). In that case, you will not be able to make a new application from within the UK, as neither Paragraph 39E(1) nor 39E(2) will apply.
If I have overstayed in the past, can I still apply for ILR on the basis of ten years’ continuous residence?
This will depend on when you overstayed, and how long you overstayed by.
An application for ILR on the basis of long residence requires you to have spent ten years continuously in the UK. If you have ever overstayed in the UK, this will break your continuous leave, unless the period between the expiry of one grant of leave and the date of application for the next grant of leave was:
- before 24 November 2016, and under 28 days; or
- after 24 November 2016, and under 14 days, and with a good reason.
For more details, see our previous blog post: Overstaying and 10 Years Long Residence ILR.
Contact our Immigration Lawyers in London
For more information on applying for leave to remain as an overstayer, contact our immigration barristers on 0203 617 9173 or firstname.lastname@example.org.