The Home Office has made a subtle change to the rules about overstaying which is advantageous for some migrants. This change relates to the situation where an in-country leave to remain application is rejected, rather than refused, and the applicant thus becomes an overstayer.
The difference between refusal and rejection of an application can be crucial. Apart from anything else, if a leave to remain application is refused – because it did not meet all the detailed requirements of the rules – there will be a right of challenge, either by way of administrative review or appeal.
But if such an application is rejected – because for example a mandatory document was not submitted or the applicant held the wrong kind of immigration leave – there may not be any right of challenge by either of these two routes, because the applicant is not deemed to have submitted a “valid application”. An application is rejected where the Home Office determines that there is something so fundamentally wrong with it that they do not consider it in any detail. Under previous rules a migrant in such a situation, if by that time their visa had expired, could be in serious difficulties, as they were now an overstayer.
The legal scheme is quite complicated but – subject to a few simplifications – it works like this. The previous overstaying rules said that if an in-country application were refused, and the applicant did not challenge the refusal decision (for whatever reason), and they thus became an overstayer, then they would be able to submit a fresh application to the Home Office as an overstayer. Or, if they did challenge the refusal but the challenge was ultimately unsuccessful, they would then be able to submit a fresh application as an overstayer. So there were a few potential bites at the cherry.
But the previous rules did not specifically refer to the situation where the application had been rejected rather than refused, and it was not at all clear that an applicant who had had their application rejected would be able to submit a fresh application in the same way – so they might be rather stuck with no way out.
But following developments in caselaw which clarified the issues and which were helpful to affected migrants the Home Office has now changed the overstaying rules, and they now clearly state that an applicant who has had their application either refused or rejected benefits in the same way, and a fresh application could thus at least be a possibility in either case.
This is a welcome development, and if you are affected by these issues we at GSN Immigration can give you detailed and accurate advice
Senior Immigration Lawyer