I love deadlines. I love the whooshing noise they make as they go by.Douglas Adams, The Salmon of Doubt
Law is frequently a question of deadlines. Points fixed in a calendar, some optimistically scribbled in, some tattooed on a limb. If you are lucky, the deadline is malleable. People might be annoyed, your reputation might suffer, you might miss an opportunity — but with a good enough justification or lawyerly spin you might be able to get away with it.
Other deadlines are imposed by statute, and missing this kind of deadline can end a lawyer’s career. The courts are replete with cases concerning missed deadlines. Sometimes the law will provide for discretion, or exceptional circumstances can be argued, but sometimes the deadline operates as a hard stop. Rights or statuses are extinguished: the end of the road.
UK immigration law, in particular, is built on a structure of deadlines. Permission to enter or stay in the UK is often time limited. A day is fixed for the expiry of that status, and unless action is taken before that date the status will end.
The consequences of missed immigration deadlines have progressively worsened, particularly over the last decade. Irrevocable damage is often caused to an individual’s right to live and work in the UK — with the focus on the termination of rights after an infraction, rather than measures designed to improve compliance.
Overstayers have one chance to fix things
The Home Office will not normally accept an immigration application from an overstayer. If a visa applicant does not have leave to remain, the application will normally be rejected as invalid. (There are exceptions for asylum and human rights applications, but this is not something we are looking at in this piece.)
There is a general provision which allows the Home Office to accept an overstayer’s application as valid in the following limited circumstances:
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.Immigration Rules, paragraph 39E
So there are two fundamental points that have to be engaged for an overstayer to even have their application considered by the Home Office:
- their late application must be made within 14 days of their leave expiring, AND
- the Home Office must accept that the person had a good reason beyond their control.
The critical point is that the 14 day deadline is a hard stop. A migrant cannot make a valid application for leave after 14 days, whatever the reason, no matter how compelling, or indeed how mundane but human. Save for a further, fraught application on human rights grounds, they should really leave the UK. In this way, missing a deadline can really mean the end of life here.
There are all sorts of reasons why someone might not apply in time. They might simply forget — who amongst us hasn’t forgotten something important at one time or another? Other reasons might involve illness, bereavement, or an accident. Perhaps a personal crisis of some sort, a relationship breakdown, the death of a beloved pet.
Technical issues can also arise. Most applications must now be lodged and paid for online, and the submission of the form completes the application. If information or documents are not available, some might delay the application, or find they cannot afford to pay the fees. In the case of a sponsored applicant, sometimes the sponsor is unable to issue a certificate of sponsorship in time.
The consequences of overstaying
Knowingly remaining beyond the expiry date of a visa, or more properly limited leave to enter or remain, is technically a criminal offence, although prosecuting overstayers is almost unheard of.
Much more relevant in practice is that overstayers are prohibited from working. This prohibition remains in place even after they have applied for a visa extension, persisting up until (and if) they are granted leave to remain.
Therefore a sponsored worker, who misses their visa expiry date for a very good reason — say the death of a spouse — can legitimately apply to extend their leave within 14 days, but will be prohibited from working for their employer until they are granted leave to remain. If the employee continues to work they will be committing a criminal offence, and if the employer continues to employ them, they could be liable for a civil penalty of up to £20,000 (or prosecution of the employer in some cases).
According to the Tier 2 and 5 sponsor guidance, an employer is also obliged to stop sponsoring a worker if they are absent without pay for more than four weeks. An employee applying as an overstayer would need to stop work. If they do not receive a decision within four weeks, technically the employer would need to stop sponsoring them, which would massively complicate the situation. The relevant notification on the sponsor system could then prevent a further grant of leave.
It might be considered that an employee could be placed on leave and continue to be paid to avoid this. However, the civil penalty regime is very broadly drafted and there would be a danger that this would still constitute employment. These are very tricky questions for an employer, crossing over into complicated employment law matters, and there is no answer in the voluminous Home Office guidance to this conundrum.
On top of this, more than 30 days of overstaying means a mandatory one-year ban on returning to the UK if the person decides to leave and re-apply for another kind of visa.
Perhaps the most egregious punishment is the poisoning of the well for future settlement applications. This can be of immediate and devastating effect, penalising individuals who have spent many years of their lives here, but have a few days’ gap between visas along the way, or even make a mistake at the finishing line when applying for indefinite leave to remain (ILR). Fail to apply within 14 days of the visa expiring, and without a “good reason”, and the applicant is faced with, at best, an eventual appeal under human rights grounds which might place them on a ten-year route to settlement in addition to the time already spent here.
The potentially serious effect of overstaying was brought into sharp focus by the recent case of R (Ahmed) v Secretary of State for the Home Department  EWCA Civ 1070, examined by Nick in this post. In this case the Court of Appeal essentially concluded that an applicant applying for ILR would have the clock reset if they had overstayed by a single day within the preceding ten years.
What is particularly striking is that an ILR applicant has to detail their immigration history for the preceding decade. So if applying now, they must disclose their immigration record since 2009.
Penalised for historic overstaying that wasn’t a problem at the time
UK immigration law in 2009 was very different. For one thing, there was no codified rule on when an application from an overstayer would be accepted. The rule stipulating that an application needed to be made within a certain window after the expiry of the old was not introduced until 2012 (the permitted period was 28 days, since reduced to 14).
The good old days
From 2009 until 2012 overstaying was not necessarily fatal to an application; the rules were silent on the matter. The Long Residence guidance at the time stated that a single gap in lawful residence when an applicant applied up to ten days late was acceptable. On its face this seems a harder position than 14 days, but note that this overstaying did not require there to be a “good reason” in addition.
It was also common for applications to be granted even after a significant period of overstaying, and the guidance recognised this:
It may be appropriate to use your judgement in cases where an applicant has submitted a single application more than 10 days out of time if there are extenuating reasons for this (e.g. postal strike, hospitalisation, administrative error on our part etc). This must be discussed with a Senior Caseworker.
Of note too was the section in the guidance stating that applications for ILR could be accepted up to six months after leave had expired, since the rules didn’t at this time require an ILR applicant under long residence to actually have leave when they applied. “Any applications submitted more than six months out of time may need specific handling – please consult current guidance on handling for applications over six months out of time.”
The 2012 changes
In 2012 the rules tightened (on overstaying as in many other areas). An application from an overstayer would be accepted if made within 28 days of the leave expiring, but refused if made beyond that date.
The explanatory memo accompanying the changes promised that “there will be a number of safeguards to ensure that the amended rules are fair and proportionate”, including that “caseworkers will continue to have discretion to consider exceptional cases. Applicants who have overstayed by more than 28 days may provide evidence of exceptional circumstances which prevented them from submitting their application in-time”. So there was, at least, discretion.
This ended in 2016, at the same time that the permitted period of overstaying was reduced to 14 days. The rules now required a “good reason” for the overstaying and discretion beyond the rule, at least in published guidance, was abolished.
The rationale was: “this 28 day period was originally brought in so that people who had made an innocent mistake were not penalised, but retaining it sends a message which is inconsistent with the need to ensure compliance with the United Kingdom’s immigration laws”.
It is not difficult to see how an applicant might now be punished, under the current approach to long residence applications, for overstaying which occurred some years before. The current guidance, which is certainly more lenient than the approach taken by the Court of Appeal in Ahmed, still refers to only a maximum period of 28 days overstaying if it occurred before 24 November 2016. In reality, longer periods of overstaying may not have adversely affected a migrant’s immigration status before 2012.
Fairness and flexibility replaced by “sending a message”
Tracking these kinds of changes illustrate how our system can change for the worse. In 2012 it was recognised that discretion was needed, since fairness and proportionality would be at risk. By 2017 that was out the window, and the government just wanted to send a message.
If the purpose is to improve compliance in individual cases, termination of someone’s entire right to reside hardly going to achieve it. A stiff tax penalty, for example, would buck people’s ideas up without meaning they have to stop working or leave the country entirely.
It might be argued that the policy acts as a deterrent. Others might see the grave consequences for overstaying and be chastened to tattoo their visa expiry date on a limb. But there are no national publicity campaigns, or Home Office press releases, or advertisements. The only messages come from sporadic media attention on families affected. These are not within the government’s control and often focus on the human impact rather than the technicality at issue.
What is to be done?
I am far from saying that the rules should be thrown out. Of course status to remain in the UK needs to be regulated and of course expiry dates are important in all types of contexts. It is the gradual erosion of a humane and pragmatic approach that is the problem.
The Home Office harvests tremendous amounts of personal data from visa applicants, including contact details, email addresses, correspondence addresses, and representative details. Is it not possible to issue warnings to individuals that their status is due to expire?
A employer which sponsors migrant workers will be emailed a total of five times with warnings that their sponsor licence is due to expire. We are all familiar with constant reminders of all sorts of deadlines: tax returns, MOT, home insurance, even passport expiry. We receive constant direct communication, often automated, by any number of regulatory and commercial bodies.
The Home Office, by contrast, having established the dire consequences of overstaying, does not warn people about them but rather leaves all the focus to enforcement and removal once the damage is done. Consider, for example, the substantial contract awarded to Capita to contact and persuade undocumented migrants to leave the UK. Or the notorious “GO HOME” vans. If the Home Office really wanted to send a message about the need to ensure compliance with the United Kingdom’s immigration laws, should it not have instead considered investing in general and specifically targeted communication schemes designed to prevent non-compliance in the first place?
Perhaps, in reality, the “need to ensure compliance” was just cover for another example of the single-minded pursuit of a reduction in the net migration figures.