Following on from my McGill & Co. colleague Darren’s recent post on the consequences of overstaying, I thought I would illustrate his point with a few case studies. The following examples are all derived from real cases that I have recently dealt with. Names and other identifying details have been changed.
As Darren says, the harshest aspect of the rules on overstaying is that it becomes a near-insurmountable legal problem after 14 days. Someone whose UK visa has expired more than a fortnight ago cannot retrieve the situation by belatedly applying to renew it. They are supposed to leave the country immediately, with all the attendant trauma and expense, and without any guarantee that they will ever be able to return.
Bob is a high-flying publishing executive. He was a sponsored employee on a Tier 2 work visa and had lived in the UK continuously for five years, making him eligible for indefinite leave to remain (ILR).
Bob had just passed the Life in the UK test and was all geared up and ready to go with his application for indefinite leave to remain. As he was completing the form and inputting his biometric card details, he noticed with horror that his visa had actually expired over 30 days ago. He thought it was due to expire imminently but it turned out he got the month wrong.
He thought maybe his employer or the Home Office would have reminded him that it was expiring. His employer thought that he would have been monitoring this himself. The Home Office does not issue reminders.
Bob had therefore been an overstayer for over a month. On discovery of this fact, he became a knowing overstayer which meant that he was committing an ongoing criminal offence. He was unable to make a valid application for Tier 2 ILR because of paragraph 245HF(j) of the Immigration Rules:
The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.
Bob was in breach of the immigration laws and more than 14 days past the expiry of his leave; nothing in paragraph 39E applied.
Like so many others, Bob made an honest mistake. He was possibly working too hard. Due to one silly forgetful moment, the last five years of his life building up to his ILR application might as well count for nothing. Bob had no choice but to leave as he was unable to apply for any visa from within the UK due to his status as an overstayer. Bob rushed home to pack his bags and arrange a flight back to his home country, waving goodbye to his ILR at the airport.
Even coming back was difficult: he was unable to apply for most types of entry clearance because of having overstayed by more than 30 days. Even if this re-entry ban hadn’t applied, he could not just apply for a fresh Tier 2 visa from abroad, as that requires a mandatory twelve month “cooling off period” (he was not lucky enough to be earning a high enough salary for that cooling off period to be waived).
Bob was in a relationship with a British citizen. They had high hopes of Bob getting his ILR then his citizenship within a year. Thankfully they had cohabited for at least two years together and Bob was able to return to his home country, work remotely during this time, and apply for a priority partner visa.
Bob is now back in the UK with a partner visa but his clock for ILR has reset to zero and so he will not be eligible for ILR for another five years, and citizenship one year after that.
Not everyone has the financial backing of a major publishing house like Bob, and not everyone has a British partner able to sponsor their return. Without those, Bob would never have made it back to the UK.
Bob’s error will cost him, at minimum, about £7,150 in additional visa application fees. This does not take into account priority processing charges, legal fees, urgent flights, and accommodation costs while waiting abroad for a visa.
Agnes is a lady in her 70s. She is a loving mother to a child in the UK and a loving grandmother to several British grandchildren also in the UK.
Just over five years ago, Agnes decided to relocate to the UK to be closer to her family. She had a grandparent born in the UK and was eligible for a UK Ancestry visa. She got her visa, sold her house, packed her belongings and moved close to her family.
An Ancestry visa is valid for five years. Five years after she arrived in the UK, Agnes’s very elderly mother took sick abroad. Agnes naturally did not have her mind on her visa.
When Agnes visited her local Citizens Advice centre to ask for assistance on which form to use for her ILR application, the advisor noticed that her visa had expired just under a month previously. As with Bob, Agnes became a knowing overstayer, and was thus committing a criminal offence.
Paragraph 192 of the Immigration Rules states:
Indefinite leave to remain may be granted, on application, to a Commonwealth citizen with a United Kingdom born grandparent provided the applicant… is not in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.
Agnes, as an overstayer, was in breach of the immigration laws and more than 14 days beyond the expiry of her leave. There was nothing in paragraph 39E that applied to exempt her. She was therefore unable to make a valid Ancestry ILR application.
Maybe that deadline ought to have been etched in her brain and on her calendar, but with the passage of time over five years, and with other competing factors in her life, she simply forgot.
This lady gave up her life in her home country to permanently move to her ancestral home to settle close to her child and grandchildren. But because she missed a date by a few weeks, the Immigration Rules do not allow her to make a valid application.
The legally correct move for her would have been to immediately depart from the UK, and if wishing to return, apply for entry clearance again from abroad. Doing so would be extremely disruptive (remember that Agnes had sold her home abroad) and would have run the risk of entry clearance being refused — and even if successful, she would have been back to the start of that five year road to ILR. Furthermore, unless she was able to book flights out within 30 days of her visa expiring, she risked facing a re-entry ban.
In the end, the life disruption that a departure from the UK would cause, just to make a fresh application to come back to the UK and wait for an indeterminate period for a decision, was simply too much to countenance. We decided to apply for ILR anyway, seeking a discretionary grant outside of the rules based on a number of compelling factors. We are still waiting.
Matilda was living here on a visa granted to her as the parent of a British citizen child in the UK.
Matilda had already completed two and a half years of residence in the UK and was ready to apply for an extension. After five years she would be eligible for ILR, like Bob and Agnes.
Matilda thought her visa expired one month later than it actually did. She noticed this two days after expiry. She urgently submitted her extension application and tried to give a “good reason” for the delay, in line with the potential exemption for overstaying of less than 14 days in paragraph 39E of the Immigration Rules. This applies where:
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.
Ultimately, though, Matilda admitted to the Home Office that the mistake was her own fault. She simply forgot.
The Home Office refused her extension application. It did grant her a different category of leave on human rights grounds, as it is empowered to do, but this placed her on a new, ten-year route to ILR, taking her off the shorter course that she was on.
So what’s the big deal? Unlike Bob or Agnes, she at least got a visa (even if it wasn’t the visa she asked for) and didn’t have to disrupt her life.
Being shunted off a five-year route to ILR onto a ten-year route starting fresh at year zero (due to the break in continuity of lawful residence caused by the two days of overstaying) means she will have to make three more extension applications, then an ILR application, over the course of the next ten years. At today’s prices, this would cost her £2,052.20 per extension application (inclusive of biometric enrolment fee and immigration health surcharge fee), so an additional £6,156.60. Then her ILR application will cost her (again at today’s rates) a further £2,408.20.
Ironically, now that Matilda has valid leave to remain again, she could make another visa application immediately to try and switch back on to the five-year route to ILR. She meets all the requirements, but this will cost her another £2,052.20, and place her at year zero again on that five-year route to ILR. So all in all, not much of a cost saving in the long run. All this for two days of technically unlawful residence as an overstayer.
It is worth thinking about Matilda’s case the next time you hear some inflated figure for the number of “illegal immigrants” in the UK. The expert consensus is that most people without permission to be in the UK have simply overstayed, rather than entered illegally.
Christina lived in the UK with her British husband for five years. She held valid spouse visas throughout that time. Christina was on the ball, and well aware of when her visa was expiring. She knew that she had to make an application before the expiration date.
She also knew that if the application was undecided by the date of expiry, her lawful residence would continue automatically until a decision was made (under section 3C of the Immigration Act 1971). Christina dutifully filled in an online form and handed over a fee of £1,349.20.
This fee will be ringing alarm bells to immigration lawyers right about now. That is how much an application for naturalisation as a British citizen costs — not an application for ILR (which is £2,389 plus £19.20 for biometric enrolment). Christina had applied for citizenship instead of settlement.
Why? She just got confused and thought that this was what she ought to be applying for. This is not uncommon: see What happens if you mistakenly apply for British citizenship instead of indefinite leave to remain?.
Christina’s citizenship application was refused. By that time, her visa had expired. The Home Office refusal letter glibly informed Christina of this distressing fact. (Thankfully the refusal arrived just shy of 14 days from expiry of leave.)
Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.View Now
All this came as a considerable shock. Little did she know that section 3C does not extend leave where a person makes a citizenship application instead of an application for further leave to remain.
Christina is now in the UK unlawfully. As with Agnes, the legally correct thing to do would be for Christina to depart from the UK and to apply for fresh entry clearance from abroad. She will need somewhere to live in her home country, to separate from her husband for an indeterminate period of time, to risk refusal due to having previously overstayed, to pay a lot of money in fees, and to start back on year zero of her five-year path to ILR.
To make a valid spouse ILR application, paragraph E-ILRP.1.2. of Appendix FM states:
The applicant must be in the UK with valid leave to remain as a partner under this Appendix (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded)
In Christina’s case, had she made literally any other type of immigration application seeking leave to remain instead of citizenship, no matter how absurd, irrelevant, or doomed-to-fail a category she were to choose, paragraph 39E would have allowed her to make a fresh application within 14 days of refusal, no questions asked and crucially without the need to show good reason beyond her control. Because a citizenship application is not an application for leave to remain, however, it does not generate 3C leave and does not fall within the ambit of paragraph 39E.
For example, had Christina made a completely unmeritorious and destined-to-fail application for ILR as an exceptionally talented astronaut (despite having no astronomical talents) prior to expiry of leave, and had that been refused at any time after expiry of her leave, she would be permitted to make a new application within 14 days under paragraph 39E.
You can see the problem here. Someone could game the system to extend their time in the UK by making a daft application for leave, and then following up with another within 14 days of refusal, whereas someone who innocently applies for citizenship based on marriage to a British citizen and gets refused, has no remedy under paragraph 39E to submit a valid application, other than pleading “good reason”.
If this all sounds very snakes and ladders, well, it is. And the rules are designed to ensure that all errors result in landing on that big fat snake that takes you all the way back to the start of the board.
We have decided to try an ILR application anyway (within 14 days of expiry of leave and refusal of the citizenship application), pleading good reason and, failing that, seeking discretion. We await a decision.