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Grace period for overstayers cannot be relied on twice

Grace period for overstayers cannot be relied on twice

The grace period for overstayers in paragraph 39E of the Immigration Rules cannot be relied on twice. This, in short, is the conclusion of the Court of Appeal in Kalsi & Ors v Secretary of State for the Home Department [2021] EWCA Civ 184.

Exception for overstayers

The rules for most types of visa require that the person must not already be in the UK in breach of the immigration laws, unless paragraph 39E applies. This paragraph allows a period of overstaying to be disregarded when making a new application. It says:

39E. 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 in-time; 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); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

(3) the period overstaying was between 24 January and 31 August 2020.

We are concerned here with the second subparagraph, and in particular the part highlighted in bold. This provision is necessary because, following an unsuccessful administrative review, you instantly become an overstayer. It is therefore impossible to make an application before expiry of your visa. Paragraph 39E(2) gives you 14 days’ grace in this situation. 

Before launching into the case, we need to mention another concept: 3C leave. This is the name for the automatic extension of your visa whilst an application is pending under section 3C of the Immigration Act 1971. As we shall see, this is different from paragraph 39E, which is about being able to apply to stay in the UK despite your visa having expired.

Facts of the case

Imagine you have a visa as an entrepreneur which expires on 18 April 2017. You make an application to extend your visa before expiry. This application is refused. You submit an application for administrative review. This is refused, on 27 February 2018. You make a second application on 8 March 2018, within 14 days of that decision. This is also refused and, on 12 June 2018, the refusal is upheld following administrative review. You then make further applications, all of which are refused on the basis that you are an overstayer.

These are the facts of Kalsi & Ors v Secretary of State for the Home Department [2021] EWCA Civ 184. Two important questions arise:

  1. Do you have 3C leave?
  2. Did paragraph 39E apply to your subsequent applications?

The answer to both of these questions is no.

Paragraph 39E does not extend 3C leave

This fact is probably already known to most immigration lawyers, but can often come as a surprise to clients. It is confusing to be told you are an overstayer, but that you will not face any of the consequences of being an overstayer. Yet this is the approach adopted by the Home Office with paragraph 39E (see also the “exceptional assurance” given to people stranded in the UK by coronavirus). 

 As confirmed in Kalsi & Ors:

Paragraph 39E permits an applicant who has overstayed for a short time to make a further application, which will be considered on its merits. It does not extend that applicant’s leave, however, and so does not extend the period within which an application may be made ‘in time’. [Paragraph 66 of the judgment]

As such, Mr Kalsi’s 3C leave came to an end on 27 February 2018, when the first administrative review application was refused.

Paragraph 39E cannot be relied on twice

Although by now without section 3C leave, Mr Kalsi could still rely on paragraph 39E to submit an application for new leave — at least for the application submitted on 8 March 2018. But the court found that his later applications, after the administrative review of the March application was refused on 12 June, were not covered by the grace period.

This is because the paragraph 39E(2) exception only applies where you make an application “following the refusal of a previous application for leave which was made in-time” (see text in bold above). This means before expiry of your visa:

That is the only sensible meaning which that phrase can be given in this context… [Paragraph 65]

The March application, although considered by the Home Office because of paragraph 39E, was not made “in time”: the visa had expired on 27 February. You only get one chance to use the grace period. The Home Office was therefore found to be correct to have refused all subsequent applications on the basis of overstaying.

Service of administrative review decisions

The Court of Appeal also considered the rules for service of administrative review decisions. It confirmed that the approach adopted in Alam v Secretary of State for the Home Department [2020] EWCA Civ 1527 applies to administrative review:

…a decision sent in accordance with paragraph SN1.3(c) is ‘deemed’ to have been ‘given’ to the person affected, unless the contrary is proved. In other words, proper postal service is taken not only to show that the decision arrived at the address, but, further, that the decision was ‘given’ to the applicant. However, that assumption can be displaced by evidence to the contrary. That must include evidence showing that, in fact, the decision was not ‘given’ to the applicant. [Paragraph 74]

The issue of whether Mr Kalsi was properly served with the June administrative review refusal was ultimately irrelevant, but the Home Office officials corresponding with him failed to make this clear. The court’s exasperation with this state of affairs comes across in the judgment:

The reasoning in the Secretary of State’s relevant decisions suggests to any reasonable reader that the issue of when decision 3 was served was in some way relevant to the outcome of application 2. The decisions do not clearly explain that even if A’s argument about service had been correct, it did not and could not displace the refusal of application 2 which the Rules required. It may be that even if they had, A would still have brought these proceedings, but we will never know. All I will say at this stage is that if the relevant decisions had been clearer, the Secretary of State might well have been on stronger ground on the issue of costs. [Paragraph 77]

All a bit of a mess really.

Now read: Overstaying on a UK visa: law and consequences.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. Iain is also Vice Convenor of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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