When it comes to overstaying a visa, it is often said that prevention is better than the cure. However, there is a general provision which allows the Home Office to accept an application from an overstayer as valid if it is submitted within 14 days and with ‘good reason’ for being late.
What is overstaying?
If a person had leave to enter or remain in the UK and then stays after the expiry of that leave, they are deemed an ‘overstayer’. In general, the Home Office does not accept applications from overstayers.
Overstaying a visa has long been a criminal offence, but the consequences for overstayers have worsened in recent years and at the same time the remedies for correcting overstaying have narrowed. Those present in the UK without permission are also now subject to the ‘hostile environment’, designed to make life difficult including restricting access to work, bank accounts, housing, and health care. In 2016, a 28-day grace period for late applications from overstayers was replaced with a shorter 14-day period, and the requirement for a ‘good reason’ was also introduced.
What is the 14-day with ‘good reason’ rule?
Under the current rules for late applications, the Home Office will disregard a period of overstaying provided a new application is made within 14 days of the previous leave expiring and the applicant can evidence ‘good reason’ for having overstayed.
This rule is contained in Paragraph 39E of the Immigration Rules. The Home Office will disregard a period of overstaying provided that:
“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.”
What if I made an application which was refused?
It is also possible to rely on this exception where you have applied in-time, meaning before your visa expired, but that application is refused. The Home Office will disregard the period of overstaying following a refusal of an in-time application where it was made:
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(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Applicants whose applications have been refused are able to make another application within 14 days of their refusal. The ‘good reason’ requirement does not apply in these circumstances.
What counts as a ‘good reason’?
The caseworker guidance gives examples of reasons that might be accepted as beyond an applicant’s control, including:
- Being admitted to hospital for emergency treatment
- A close family bereavement
- An educational institution was late in issuing a Certificate of Studies (only relevant to Student applicants)
This is not a comprehensive list, but it gives an idea of what the Home Office may accept (with evidence).
The Home Office says that caseworkers will decide on a case-by-case basis and will give thought to:
- The plausibility of the reasons
- The credibility of the evidence
- Whether the reason was genuinely outside the applicant’s control, or whether the difficulties could be reasonably overcome
Does submitting a new application mean I am no longer an overstayer?
It is important to note that relying on this exception does not mean that an applicant is no longer an overstayer, only that overstaying will be ‘disregarded’ where the Secretary of State accepts these circumstances apply.
This means that if you submit a late application and seek to rely on Paragraph 39E, you will be an overstayer while the application is being processed and therefore will not have the right to work until you receive a decision and you are granted leave.
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