Genuine Causes for Overstaying a UK Visa
When it comes to obtaining a visa for the UK the rules are complex and they are constantly evolving. The onus tends to be put on the person making the application to comply with the latest rules even when these rules are not clear and obvious. The rules regarding a 'grace period' for people who overstay their visa were changed on 24th November 2016. The previous 28 day grace period was abolished and the new rule is that there are only 14 days grace period provided there is 'good reason' for the overstay.
Problems in Definition
The problem with the new rules is that what constitutes a 'good reason' is not adequately defined in law. The guidance that is issued by the home office says that it is down to the caseworker to assess the merits of each case to determine if the reason given for overstaying is a 'good reason'. This means that it is a subjective evaluation of the casework as to regards the reason. The caseworker is told to pay mind to whether the over-stayer had the capability of preventing the reason for the over-staying or whether it was entirely out of their control. They also have to look at the credibility of evidence that has been provided by the over-stayer. This doesn't give a very clear idea of what will constitute a 'good reason'
The home office guidance does give some example of things that might constitute a genuinely good reason. These are:
- the applicant was admitted to hospital for emergency treatment (evidenced by an official letter verifying the dates of admission and discharge and the nature of the treatment)
- a close family bereavement
- an educational institution was not sufficiently prompt in issuing a Confirmation of Acceptance for Studies (CAS)
It seems clear from the examples given that it is only in the more extreme circumstances that the grace period for overstaying will be adhered to. Therefore an over-stayer needs to make sure that they have as much external evidence to support their reasons as possible.
A Second Bite of the Cherry
One of the knock-on effects of the change is that over-stayers are now able to get a second attempt at applying for leave to remain if they are refused at the first instance. So for example, if they apply for leave to remain late because e.g. Their passport was stolen (supported by a crime number) and that leave is subsequently refused. The person may now have overstayed by 3 months and under the old rules would be out of time for a chance to reapply. Under the new rules, they can apply again within 14 days of the refusal being made. This is a change that is welcome and aids people who have had problems with their applications. It still doesn't clarify what will be classed as a good reason.
What won't be a Good Reason
What is clear is that if your 'good reason' is that you forgot, were too busy with work or studies or there was some other reason that was 'entirely within your control' then this will not constitute a good reason. This means you have to be very careful. If the situation is for example that a family pet is seriously ill and your children are distressed and have had to be pulled from school and so you are busy taking the pet to the vets and dealing with the children and this causes you to forget about getting your forms in on time then this is not likely to be accepted as a sufficient good reason to allow the application out of time.
Impact of 'Good Reason' Not Being Accepted
If your 'good reasons' are not accepted this can have a knock-on effect on the over-stayer. At the point of over-stay, all rights granted under the visa are suspended and this includes having the right to work and access to things like benefits. If you are found guilty of being an over-stayer this is a criminal offence and can cause you to be refused a visa in the future on the basis that you have overstayed before. This means that the consequences for a 'good reason' not being accepted can be dire for the person involved. Being an over-stayer also tips a person into the 'hostile environment' category of the home office. This means that something even as simple as driving a vehicle whilst overstaying will be classified as a criminal offence.
Challenging 'Good Reasons' Decisions
So, if the 'Good Reason' is refused then this would have to be challenged by a judicial review of the decision. This means that it is likely that such challenges are going to increase particularly in more marginal cases. Whilst the guidance is less than definitive and there is no clear test it seems that 'difficulties that could realistically have been surmounted' would be a barrier to granting the grace period.
It goes without saying that if an over-stayer is looking to make an application during the grace period based on good reasons then they should have sound legal advice about their prospects of winning such an application. Good reasons arguments need to be made as strong as possible with as much supporting evidence as possible to go with them. Documentation from hospitals, banks, educational institutions or the police will all go a long way to helping to support the application.
Case law is constantly developing and there will no doubt be several test cases that go to the heart of what makes a 'good reason'. So if you are looking to make a grace period application then you must get robust legal advice so that you can be realistic about your prospects of winning such an application. The more information about the situation and the circumstances the more your case will have a chance of being approved.
If there is any chance that the situation could have been avoided then it seems more likely that the application will be refused. If you have already overstayed your visa then you should call us urgently to see if we can do anything to help you - this may not always be possible but please get in touch at the earliest possibility as this will certainly enhance our ability to help you.
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