Overstaying – rules and penalties

As we have previously said in this blog, if you are in the UK with immigration leave and you want to extend or switch your leave you must make the application before your existing leave expires. If you submit an application up to 14 calendar days late the Home Office will only accept the application if there was “good reason” for the lateness. If you try and submit an application more than 14 days late the Home Office will not accept it at all, whatever the reason.

But if you have had an application refused and want to submit a new one the rules are more complicated but not so harsh. You may be able to do so, and you do not have to provide any reasons for anything. 

In a typical scenario, if a migrant applies for leave in-country (for example for a study visa, work visa or family visa), if the application is refused they will have the right to challenge the decision, either by way of appeal or Administrative Review (AR). 

The migrant might not, for whatever reason, want to exercise the right of appeal or AR. Perhaps they think or have been advised that the challenge would be weak or perhaps they do not want to engage with the expense and length of time usually involved in an appeal case. 

In this sort of situation, the way the rules work might seem rather counterintuitive, but this is how it is. The migrant can wait for the deadline to apply for an appeal or AR to pass, and not do anything for the moment. Once the deadline has passed, and they thus become an overstayer, they then have a 14-day window in which to submit a new application and the Home Office will accept it (as long as it is in correct form) and process it. If the application is successful then of course the migrant is no longer an overstayer. 

But if the migrant does exercise the right to appeal or AR, the overstaying rules may still operate. If the appeal/AR is ultimately unsuccessful (which might in some cases be a good few months down the line) another 14-day window comes into effect, and the migrant can submit a new application within that 14 days. 

We must emphasise that the rules in this area are quite complex, and this is a very simplified scheme which does not address all possibilities and scenarios. If you want advice and assistance about these issues we at GSN Immigration will be able to help you.

Author

Oliver Westmoreland

OISC Level 3 Immigration Adviser