After some serious lobbying UKBA have appear to respond to our cries of unfairness, but on reflection, the practice of their offering doesn’t really help our clients much……..unless they return home to seek entry clearance which it seems is the real focus of UKBA policies.
The issue in question is the 28 day grace period that UKBA have offered up.
The current drafting of this provision states that an application falls for refusal if the applicant has overstayed by more than 28 days by the date of decision rather than the date of application. Home Office officials have confirmed at a meeting on 1 August 2012, that the intention of the provision is that if a person resubmits within 28 days of their overstay, then they can still qualify under the rules.
However, UKBA go on the explain how the provision is also ‘intended to assist’ persons who have made in-time applications which are returned as invalid after the expiry of leave by allowing such persons a period of 28 days grace to leave the UK without counting as overstayers for the purposes of future applications for entry clearance. You will note that this provision does nothing to benefit or assist those who reapply in country.
Invalid applications are returned for various reasons, but the most common one we have found is an inability for UKBA to take the application payment.
As UKBA treats such applications as never having been made, the applicant still cannot benefit from 3C leave (Immigration Act 1971. As such technically, if they have worked after submitting their in-time application and prior to receipt of the notice stating their application is invalid, they will have been in breach of the conditions of their leave from the date of expiry of that leave.
No doubt, this may be one that is fought out at appeal stage, costing the applicant more time and cause them stress.