*Important notice: This post was published prior to a change in immigration rules in November 2016 which removed the 28 day grace period for UK visa applications. Under the current rules (as at March 2018), where the Secretary of State considers there is a ‘good reason’ which was out of the applicant’s control that led to the application being submitted late, any period of overstaying may be overlooked, provided that the application is submitted within 14 days of the leave expiring. Please contact us if you have any queries.
One of the key commandments of UK Immigration Law, if not the first, is to never become an over-stayer – in other words, never overstay the validity period of your visa. In extreme cases, overstaying one’s visa can lead to the refusal of any subsequent immigration application.
This is often easier said than done. We frequently receive calls from panicked people who have, for whatever reason, failed to apply to extend their leave before their visa expiry date. Recently, a Canadian working as a senior executive at a UK bank was dismayed to find that, in the excitement of giving birth to her first child, she had failed to realise that her Tier 2 visa had expired and that she was now, technically, an over-stayer. In other cases, we have seen people who make perfectly fine in-time extension applications, only to find that the application has been knocked-back as invalid when the Home Office have been unable to process the application fee (usually the fault of the bank or credit card provider), once again, leaving the applicant without valid leave.
Until recently, these types of scenarios were difficult to remedy – effectively, we were at the mercy of the Home Office, asking them to exercise discretion and issue our client a further grant of leave.
UK visa 28-day grace period – as at March 2015*
Thankfully, in 2012 the Immigration Rules were amended to include a provision which stated that Points Based System applicant who applied out-of-time would not fall for mandatory refusal, provided that they applied within 28 days of their visa expiry date. This provided a much needed safety-net for people who would have had their immigration status put at jeopardy for often trivial reasons.
The Rules were also amended to ensure that persons who had made out-of-time applications within the 28 day grace period, and whose applications were ultimately approved, would be considered to have an unblemished immigration history with respect to any subsequent application for permanent residence. One of the key requirements for indefinite leave to remain (ILR) is for an applicant to show that they have been continuously and legally resident in the UK for a certain period of time (in most cases, 5 years). A gap in their leave could be considered a break of continuous residence, leaving them ineligible for ILR. The Rules now allow persons who have had to rely on the 28 day grace period to continue to be eligible for settlement, which again, was a welcome development.
However, it is important to realise that the 28 day grace period is not a cure-all in all cases. One of the key reasons why it is crucial that any application to extend or switch immigration categories is submitted before your current visa expires is that this ensures that you benefit from ‘Section 3C Leave’.
Section 3C of the Immigration Act 1971 states that where an application for further leave to remain is made in-time (i.e. before their last grant of leave expires), then that person’s leave will be treated as continuing until a) the Home Office make a decision on the application, or b) all avenues of appeal have been exhausted. This means that if you hold a Tier 4 student visa valid until 1 May, and you submit your Tier 2 application on the 30 April, then your Tier 4 visa will be treated as continuing even if the Home Office do not make a decision on the application until, say, September. Those benefiting from Section 3C leave can then carry on working or studying or whatever their previous visa allowed them to do until the Home Office have made a decision.
Where a person has made an out-of-time application within the 28 day grace period, their application may not fall for mandatory refusal, however, they will not benefit from Section 3C leave. In this case, they would not have the legal right to work in the UK until their application is approved by the Home Office and their leave is re-instated. This can lead to very difficult situations, especially where applications have been made by post and are subject to protracted processing times. We have had situations where migrant workers have had to take a leave of absence from their employment until their immigration situation could be remedied.
Avoiding overstaying issues
It goes without saying that it is always best to make a valid, in time application. If the worst happens, and you are forced to make an out-of-time application, make sure this is submitted within 28 days of the expiry date – and if at all possible, via the same-day premium processing service to ensure that leave is reinstated without any unnecessary delays.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals