What are the Immigration Rules for Overstayers in UK 2021?
As we often remind our valued blog readership, it is always important to keep within the terms and conditions of your visa. Whether you are in the UK on a short-term, long-term, family, work, study, investment, business, or visitor visa, staying in the country past the expiry date can have serious consequences. That said, it is not always the case that a person who overstays their visa has done so intentionally. It may be that overstay reasons like accident, injury, or an illness such as COVID-19 reasons too may mean that a visa holder is simply unable to leave the country before the expiry of their leave. In some cases, there may be a temptation to stay past the expiry date of a visa in the mistaken belief that the Home Office and Border Force will not be aware. Unfortunately, given that the visa system is now electronic, it is not possible to go undetected as an over stayer, and this will increase the chance of being removed and having future visa applications refused. In this article, we will explain the latest 2021 immigration rules for those who overstay in the UK and what you can do if you are an over stayer.
What is an over stayer according to UK immigration law?
The Home Office will consider any immigrant an ‘over stayer’ if their UK immigration status has expired, and they remain in the UK. Section 24 of the Immigration Act 1971 states, “A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases”. One of the specific cases mentioned is “having only a limited leave to enter or remain in the United Kingdom, he knowingly either (i)remains beyond the time limited by the leave; or (ii)fails to observe a condition of the leave”.
In addition, if you have had your visa shortened (known as curtailment) by the Home Office because you are no longer eligible under the immigration rules unless you leave by the new earlier date, you will be classed as an over stayer. This might apply, for example, if you held a work visa but your sponsoring employer lost their sponsorship status. In this case, all workers sponsored by the employer may have their work visas curtailed.
It is also important to emphasise that it is up to you as the visa holder to adhere to the requirement to leave the country before your visa expires (or make a new application to the Home Office). You won’t receive a letter reminding you of the pending expiry of your visa.
Assuming that you do apply for a new UK visa or to extend your current UK visa before it expires, then you will not be classed as an over stayer while the application is being processed by the Home Office. If, however, you receive a refusal of your new application, you need to take prompt action. This is because you will have 14 days to make a new application or lodge an appeal. Again, as long as you do so, you will not be classed as an over stayer.
Is there a grace period for over stayers?
If you have a ‘good reason’ for overstaying, any new application you make after the expiry date of your visa but within 14 days may still be considered if you have a ‘good reason’. Section 39E of Immigration Rules part 1: leave to enter or stay in the UK states that a good reason may exist where that reason is “beyond the control of the applicant or their representative”. This may include where
- the applicant was admitted to the 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).
Each case will be reviewed by the UK Visas and Immigration (UKVI) on its own merits and will be based on:
- the plausibility of the reasons
- whether the reason was genuinely outside the applicant’s control or whether the applicant is describing difficulties that could realistically have been surmounted
- the credibility of evidence provided
Can I regularise my immigration status if I have overstayed?
If you do not qualify for the 14-day grace period, or if you have already exceeded this timescale, it is recommended that you seek the help of an immigration Solicitor to help you regularise your immigration status. It may be possible to do this if any of the following apply to you:
- You have a child who is a British citizen or permanent residency
- You live in the UK with a partner who is an EU/EEA national
- You are between 18 and 24, and you have lived continuously in the UK for more than half your life
- You can prove that it is too dangerous for you to return to your home country
- You can prove to the Home Office that living in your home country would be extremely difficult (e.g., you would have no access to the care you need).
- Furthermore, you are the victim of domestic abuse on a spouse visa holder in the UK
- There were exceptional circumstances outside your control preventing you from returning home (e.g., a serious medical emergency).
- With the recent COVID-19 pandemic disruptions, the British government has created various interventions to help the immigrants. Exceptional assurance (EA) is among the interventions.
Applying for exceptional assurance due to COVID-19
If you have overstayed in the UK as a result of COVID-19, you may be able to request ‘exceptional assurance’ from the Home Office, which will protect you from adverse action against you. Under the present guidance, this only applies for leave that expires before 30th September 2021.
The Home Office’s COVID-19 guidance states, “If you intend to leave the UK to return to a country or territory currently listed amber or red but have not been able to do so and you have a visa, leave or ‘exceptional assurance’ that expires before 30th September 2021 you may request additional time to stay, known as ‘exceptional assurance’. There may also be exceptional cases where you may be unable to return to a country or territory listed as green where that nation has closed their borders or where quarantine facilities are temporarily over-subscribed, in which cases you may also request ‘exceptional assurance’.
Please submit your request for an ‘exceptional assurance’ by emailing.
If you have already overstayed your visa in the past or now, all is not lost. There are several routes available to you, depending on your situation. It is, however, important to take action immediately. Speak to immigration Solicitors in confidence as soon as possible to discuss your options and plan a way forward.
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