Who is an overstayer under UK immigration rules
Overstayer definition: Remaining in the UK after your immigration permission (i.e. your ‘leave’) has expired is commonly known as overstaying and person is known as an overstayer. Any applicant who is applying for leave to remain (‘permission to stay’) must NOT have remained in the UK after the expiry of their original grant of leave, on the date of their application.
Hostile environment policy for overstayer – UK Home Office
If you overstay your visa you will likely face problems due to the UK government hostile environment policy towards overstayers. You will not be able to have a bank account, rent an accommodation, work in the UK or have a driving licence. From the next year, 2024, penalties for employing or renting to someone who does not have immigration permission to stay in the UK, are due to triple. We write about this in our blog article published on 7th August 2023.
As you may see from the above, there are many severe consequences of being an overstayer in the UK and therefore you should avoid becoming one.
Under the current UK immigration rules, overstayers may apply under the 20 years residence rules to stay if they can prove residence in the UK for this duration. The application is made based on Private Life rules.
Change in the immigration rules 24th November 2016
The updated Immigration Rules now provide for current overstaying to be disregarded in a limited number of scenarios but otherwise it is now a ground for refusal. The Immigration Rules were amended with effect from 24 November 2016 to abolish the 28 day grace period, under which applications for leave to remain were not refused on the basis of overstaying if made within 28 days of the expiry of leave.
Exceptions to overstaying – when overstayer can apply for permission
First, overstaying will be disregarded if the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why it could not be made in time, provided that the application is made within 14 days of the expiry of leave.
Second, overstaying will be disregarded where the applicant previously made an intime application which was refused, and the current application was made within 14 days of:
• the refusal of the previous application for leave
• the expiry of any leave extended by section 3C of the Immigration Act 1971
• the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable)
• any administrative review or appeal being concluded, withdrawn or abandoned or lapsing
‘This paragraph applies where: (1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in time; or (2) the application was made: (a) following the refusal of a previous application for leave which was made intime; and (b) within 14 days of: (i) the refusal of the previous application for leave; or (ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); (iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.’
The 14 day consideration period is calculated from the latest of either the:
• last day of their latest grant of leave to enter or remain
• end of any extension of their leave under section 3C or section 3D of the Immigration Act 1971.
What are ‘circumstances beyond your control preventing you from submitting leave to remain application’
If, within the 14 day consideration period, the applicant submitted details of circumstances beyond their control that prevented them from seeking leave, these should be considered. Caseworkers must give thought to:
• the plausibility of the reasons
• whether the reason was genuinely outside the applicant’s control or whether the applicant is describing difficulties that could realistically have been surmounted
• the credibility of evidence provided
Caseworkers must decide each case on its merits, but examples of reasons that might be considered beyond the control of applicants are:
• the applicant was admitted to hospital for emergency treatment (evidenced by an official letter verifying the dates of admission and discharge and the nature of the treatment)
• a close family bereavement
• an educational institution was not sufficiently prompt in issuing a Confirmation of Acceptance for Studies (CAS).
Migrant’s status following submission of an application within 14 days of overstaying
The submission of an application within the 14 day consideration period of overstaying does not mean the migrant’s previous leave is either re-instated or extended. Therefore, an applicant without valid leave at the point they submit their application continues to be an overstayer from the point their leave expired and throughout the period their application is pending.
As the applicant has no leave during the period their application is pending they have no permission to work in the UK. The lack of right to work is an important point to note. For example, when your skilled worker visa is refused and you reapply within 14 days, you need to wait until your visa is granted to regain the right to work.