Immigration : Overstaying - know the meaning and its implications

Meaning of overstaying

One of the most important definitions in immigration law is "overstayer".  Although, it's a term used in every day language, it is also a term of art in immigration law and is defined in the Immigration Rules in the following terms:-

"Overstaying means the applicant has stayed in the UK beyond the latest of:

(i)   the time limit attached to the last period of leave granted, or

(ii)   beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971, or

(iii)  the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application,  provided the application was submitted before the time limit attached to the last period of leave expired."

In many situations, the Home Office does not permit an application to be submitted any earlier than 28 days before leave expires, therefore, it is common for extension applications to be submitted with only days left to go on a visa. Section 3C of the 1971 Act is the relevant legislative authority which allows an individual, in such a scenario, to have their leave extended whilst their application is being considered by the Home Office.  If their application is refused, then Section 3D ensures that their leave remains lawful during the appeal process before the First and Upper Tier Tribunal. 

With regards to definition (ii), unfortunately, invalidity notices are a frequent occurrence.  The most common reason an application is rejected as invalid is due to problems with payment of the Home Office fee.   To the frustration of many, who have had funds in their bank account at the relevant date, it can often transpire that there has been a Home Office error which has led to the Home Office not being able to collect the fee.  It is therefore deeply ironic that due to this Home Office error, the applicant then becomes an overstayer facing all the consequences set out below.  

Consequences of overstaying

First off, although prosecutions are unheard of, overstaying is a criminal offence.

Secondly, and of huge practical importance to applicants and their families, is the fact that an overstayer has no right to work or be self employed in the UK.  So, the day you become an overstayer is the day your employment becomes unlawful.  If your employer continues to employ you, they will have no defense against a penalty for illegally working and if caught they could be fined £10,000 (this is soon to be increased to £20,000).

A further harsh consequence is that an application made by an overstayer, if refused, carries no automatic right of appeal to the independent Immigration Tribunal.  This is a serious disadvantage to applicants, particularly bearing in mind the poor decision making that is endemic within the Home Office.  For overstayers, who have their application unreasonably refused, the only remedy is judicial review to the Court of Session in Scotland or the Court of Appeal in England.   For many overstayers, this is an ineffective remedy given the length of time it takes to pursue, and the fact that they have no entitlement to work.

Finally, overstaying not only causes problems to an applicant's here and now existence, it can also cause detriment to future applications. 

If, as an overstayer, you make an application to extend your stay whilst in the UK, then unless you make this application within 28 days of becoming an overstayer, you will face a mandatory refusal.   The Home Office will disregard the first 28 days as an overstayer, although remember you have to rely here on the Home Office getting the decision making right first time round as there is no appeal right to the Tribunal.

For those who opt to return to their home country, they must ensure that they do so within 90 days of becoming an overstayer otherwise they too will face a mandatory refusal, subject to certain exceptions.

So, in short the lesson from all of the above is to avoid at all costs becoming an overstayer.  If, however, you find yourself in this position, then do seek urgent legal advice and remember the 28 and 90 day time-scales above.

If you have become an overstayer or require immigration advice on any matter, then please do get in touch with myself or any member of the Immigration Team.