Overstaying your visa in the UK: FAQ
When does someone become an overstayer?
An overstayer is a person who has remained in the UK beyond the period they are permitted. This will either be the expiry date on their most recently issued visa, or the date any leave that has been extended by Section 3C or Section 3D of the Immigration Act 1971 ends.
What is the effect of becoming an overstayer?
Overstaying should always be avoided if possible.
It is a criminal offence to knowingly remain in the UK beyond the time permitted. This offence is ongoing throughout the period the person remains in the UK. An overstayer is liable to detention and enforced removal to their country of origin. Overstayers do not have the right to work. Other measures will apply, which are aimed at creating a ‘hostile environment’ for overstayers, including restrictions on the ability to rent accommodation, open a bank account, drive and access medical treatment.
What if I leave the UK and want to return?
A person who has previously overstayed may be subject to a mandatory re-entry ban preventing them from returning the UK for between 12 months and 10 years depending on the particular circumstances. There will be no re-entry ban if the person overstayed for less than 30 days and left the UK voluntarily and not at the expense of the Secretary of State. Re-entry bans also do not apply to applications made as a family member. Any application for entry clearance (including those made by family members) may be refused if the applicant previously overstayed and it is considered that contrived in a significant way to frustrate the intentions of the Immigration Rules, and there are other aggravating circumstances.
Can I make an application for further leave to remain as an overstayer?
Many applications for further leave to remain require the person to have existing leave at the date of application and will be refused if the person is an overstayer. However there is an important exception contained at Paragraph 39E of the Immigration Rules, which protects overstayers in limited circumstances.
A period of overstaying will be disregarded if it is made within 14 days of a person’s leave expiring and they provide a ‘good reason’ why it could not be made in time, beyond the control of the applicant or their representative. The reason should be provided with the application. It is the Secretary of State who will consider whether the reason provided is a ‘good reason’.
The Home Office guidance on applications from overstayers provides examples, which include emergency medical treatment, a close family bereavement, or delays by an educational institution in issuing necessary documents. Evidence should be provided in support of any reason.
The exception also applies where an application is made within 14 days of an in-time application for leave to remain being refused, expiry of section 3C leave, expiry of the time limit for making an application to appeal or for administrative review or any administrative review or appeal being concluded, withdrawn, abandoned or lapsing. This means that a person who made a mistake in their application that can be corrected has the opportunity to make a further application.
Where an application is made on the basis of the exception, which is subsequently granted, the person will still have become an overstayer. They will be an overstayer from the point their leave ended up until they are granted further leave, and during this period they will not be permitted to work and will be subject to the ‘hostile environment’. However, an applicant for Indefinite Leave to Remain will have historic periods of overstaying disregarded where paragraph 39E applied and leave was subsequently granted. If a person overstayed prior to 24 November 2016 this will be subject to the previous version of Paragraph 39E, where overstaying for a period of up to 28 days was disregarded.
Contact Our Immigration Barristers
For expert advice regarding an application for Entry Clearance or Leave to Remain after becoming an overstayer, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.
