In order to obtain Indefinite Leave to Remain (in other words to settle in the UK) a person may be required to submit a number of applications depending on the route they are relying on to enter and stay in the UK. Each grant of leave is limited to a specific period of time and a new application for further leave to remain must be made before that leave expires.
Currently, an exception can be found to this in Paragraph 39E of Immigration Rules (“the Rules”) which states that where the application for leave to remain in the UK was made within 14 days of the expiry of the applicant’s most recent leave, the Secretary of State may exercise discretion if she considers that there was a good reason, beyond the control of the applicant or their representative, as to why the application could not be made in time.
It is important to note that with most immigration applications currently being made online, the date of the application is the date when it is submitted online (as provided for in Paragraph 34G(3) of the Rules) and not the date on which the applicants attend their biometric appointment.
There may be various personal reasons precluding applicants from submitting their application in time, from simply forgetting that their leave in the UK is due to expire, to experiencing technical issues with the online submission process, or more serious matters such as a family bereavement, illness or accident.
Unfortunately, if the Home Office is not satisfied that the reason for a late application is good enough to apply discretion, the application will be refused and the person concerned may potentially even have to leave the UK.
Furthermore, the Immigration Act 1971 states that an overstayer is guilty of an offence not only when, having only limited leave to enter or remain in the UK they knowingly remain beyond that time limit, but also if they fail to observe a condition of their leave – for example simply failing to check the validity of their leave in the UK and forgetting to extend it by submitting a fresh application in time.
Although the prosecution of overstayers is rare, such persons may face many other difficulties as a result of overstaying their visa, including losing their job, having to leave their family here and not being able to return to the UK for some time. For example, there is a mandatory one-year ban for those who overstay for more than 30 days, which could be catastrophic for somebody’s personal and financial affairs in the UK.
In addition, as confirmed by the Court of Appeal in the case of R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070, overstaying by only one day could lead to a refusal of an application on the basis of long (10 year) lawful residence in the UK, which would mean that the applicant would need to start their route to settlement from the beginning. In such circumstances, however, the Home Office caseworker could exercise discretion in the applicant’s favour and grant the application.
In light of the above, it is a statutory requirement for applicants to adhere to the conditions of their leave in the UK and the Home Office sends a clear message to applicants that they will face severe consequences for overstaying their leave.
Gherson has over 30 years’ experience in all aspects of UK immigration law. Should you have any questions regarding your leave in the UK, please contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2019
Solicitor in our General Immigration Team
Further Reading
British Citizenship and Nationality
Tier 2 Visas Under the Points Based System
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