UKBA 28 days grace period*
*Important notice: This post was pubished 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.
Easier said than done?
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.
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.
Always make a valid, in time application
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.
Please do contact us at DavidsonMorris if you would like some support with your application.
Post dated 18th September 2012*
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 UKBA 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.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]
*Important notice: This post was pubished 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