Rules for Overstaying on a UK Visa and What You Need to Do

As we often remind our valued readers, 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. It is not always the case, however, that a person who overstays their visa has done so intentionally. It may be that you have a valid reason for overstaying, such as accident, injury, or an illness such as COVID-19. In some cases, it may be that a visa holder is simply unable to leave the country before the expiry of their leave. 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 overstayer, and this will increase the chance of being removed and having future visa applications refused. In this article, we will explain the latest immigration rules for those who overstay in the UK and what you can do if you are an overstayer.

What is overstaying?

The Home Office may consider an immigrant to be an “overstayer” if their UK immigration status has expired and they remain in the UK without reasonable cause. You will have 30 days to leave the UK voluntarily at your own expense from when your visa expires. Failure to do so may result in you being unable to re-enter the UK in the future on the grounds of being a prior overstayer and hence a person who is unlikely to meet the conditions of any leave granted.

In addition, if you have had your visa shortened (known as curtailment) by the Home Office unless you leave by the new earlier date, you will be classed as an overstayer. 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 overstayer 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 overstayer.

Overstaying due to COVID-19

Under the current COVID-19 immigration rules, it is possible to request “exceptional assurance” from the Home Office if you have genuinely been unable to return home due to COVID-19 travel restrictions. It is important to check the latest Home Office guidance¹ as this provision may be removed at any time. The official policy of the UK Home Office is that all foreign nationals in the UK whose visa is about to expire should do everything they can to regularise their immigration position. This means either applying for a new visa, an extension, or leaving the country.

If you are granted exceptional assurance, you will have protection from any action being taken against you as a result of staying in the UK once your visa has expired. It also means that you will be able to work, study, and/or rent during the period of exceptional assurance.

There are two main exceptions that foreign nationals can use to gain exceptional assurance:

• For those returning to a red-listed country

For foreign nationals who do intend to leave the UK when their visa expires but are unable to do so if they are planning to return to a country that is currently on the UK’s red list, it is possible to request “exceptional assurance”. To be eligible for exceptional assurance, applicants must have a visa, leave, or prior exceptional assurance, which expires before the end of January 2022. If your visa or leave extends past this date, you will be expected to leave the country (unless a new concession is made after this date).

• For those returning to a green country but whose border is closed

In some cases (e.g. New Zealand), it is not possible for nationals of other countries to return home due to closed borders, despite the fact they are on the UK’s green list. In other words, they can leave the UK but not enter their home country. Some people are also unable to return home due to over-subscribed quarantine facilities in their home country. In either case, it may be possible to secure exceptional assurance from the Home Office. The Home Office states, “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’”.

How can I request exceptional assurance?

To request exceptional assurance, you will need to write to the UKVI assurance team by emailing cihassuranceteam@homeoffice.gov.uk using the subject line “Request for an assurance”. The request email should include the following information:

• full name
• date of birth
• nationality
• Home Office, GWF or any other reference number
• type of visa
• the expiry date of the visa
• reason for request
• evidence of flight or evidence showing reason you can’t leave

To the above email, you will need to attach any evidence you have which proves you cannot return to your home country. This might include information on the border lockdown in your home country or proof that no flights are available.

You can be assured that while you are waiting for a decision on your exceptional assurance request, you will be legally in the UK and subject to the conditions of your current visa (or most recently expired visa). If you already have exceptional assurance but still cannot leave the UK by the end date of the assurance given, you will need to reapply using the above process.

What are the immigration rules for overstayers in the UK?

Section 24 of the Immigration Act 1971 states that a person who stays in the UK beyond the time of their leave or fails to meet the conditions of their leave may be guilty of an offence punishable by a fine or, in some cases, imprisonment for not more than six months (this may be increased in 2022 to a maximum of 4 years under the new Nationality and Borders Bill).

Once your visa has ended, you have 30 days to leave the country (unless you are using the 14-day “good reason” rule).

It is always best to ensure you stay within the boundaries of your visa, which is especially true if you wish to make the UK your home in the long term. While it may be tempting to try and remain in the country after your visa has expired, if you wish to stay in the UK in the future, this period of overstaying will count against you. So, do not take the risk!

It is also important to note that if you choose not to leave the UK voluntarily, there is a risk you will be deported.

What are the valid reasons for overstaying?

Valid reasons for overstaying include where you have:

• Applied for a new visa or another immigration status such as Indefinite Leave to Remain (ILR)
• Applied to extend your visa
• A reason to qualify for a COVID-19 concession (e.g., you were unable to leave on time because you live in a red-listed country, your home country has travel restrictions, the quarantine facilities in your home country are oversubscribed, or you were seriously ill in hospital with COVID-19).
• You have a “good reason”, and you applied for a new visa (or visa renewal) after your visa expired – in this case, you may have a “grace period” of 14 days (see below for more details).

The Home Office will disregard a period of overstaying provided that you make a new application within 14 days of your leave expiring and if you have a “good reason” which is beyond your control why you could not apply in time. “Good reasons” for overstaying may include where:

• 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 is only in the more extreme circumstances that the grace period for overstaying will be provided. Therefore an over-stayer needs to make sure that they have as much evidence to support their reasons as possible.

What to do if you overstayed your UK visa?

If you are currently in the UK as an overstayer, it is important to take immediate action either by regularising your immigration status within 14 days or leaving the UK within 30 days. It is highly advisable to engage the services of an immigration solicitor who can review your situation and that of your family members and advise on the best course of action.

Your rights and options will depend upon who is with you in the UK. If you are with your family, then you may have more options to remain in the country. You will still have some basic rights, such as being able to take your children to school until they are the age of 16 and being able to use the emergency services, but your options will be limited as you no longer retain the right to live in the country.

An immigration solicitor will help to establish if you have a “good reason” for overstaying or if you are eligible for exceptional assurance under the current COVID-19 immigration rules.

What if my UK visa expired while waiting for another one?

In general, as long as you applied for a new UK visa before your current visa expired and your visa subsequently expired, you can remain in the UK. To understand how this works, we need to look at “section 3c leave”. According to section 3c of the Immigration Act 1971, “The purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending”. The rules also state that section 3c leave applies until the application is decided or withdrawn. This is not the case if the application is invalid, for example:

• If you have left outside the rules and you are applying for a Skilled Worker visa
• If you do not meet the minimum age requirements for a visa
• If you do not meet the nationality requirements for a visa (e.g., a commonwealth citizen if applying for an ancestry visa).
• Documents are missing from your application, and you sent the documents requested subsequently
• You have not paid your visa application fee, and you have not paid the fee when requested to do so.

Hence, if the Home Office takes the view that you have applied for a new visa or extension to your visa and you do not meet the eligibility requirements, this may mean that you are not protected under 3c leave. It is vital that you respond in a timely manner to any requests from UKVI for payment or missing documents.

How long can you overstay your visa in the UK?

Technically, under section 24 of the Immigration Act 1971, any period of overstaying in the UK is a criminal offence punishable by fine or imprisonment. You may be able to benefit from the 14 day grace period if you have a “good reason” for making a late immigration application. In addition, you have 30 days to leave the UK voluntarily from when your leave expires to avoid a potential ban on your re-entry to the UK. You are still classed as an overstayer during this period, however.

Will overstaying impact a future UK visa application?

In general, the Home Office will ban overstayers from re-entering the country for a period of up to 10 years (the maximum ban is not rare). This may not be the case if you leave voluntarily within 30 days of your leave expiring.

There are a few options for re-entering the UK after being banned. The main option will be to wait for your ban to end. If you do this, your record will be wiped clean, and you will, once again, be able to successfully apply for a visa to come back to the UK. Another option will be to lodge an appeal if you believe that your removal or re-entry ban was unlawful.

How can Reiss Edwards help?

Reiss Edwards have a wealth of experience in helping migrants to the UK and their family members whose leave has expired or is about to expire. We understand the urgency of such cases and will take immediate action to do what we can to regularise your situation, even if this means gaining temporary approval for your stay while we work on a longer-term solution. Our team of specialist family immigration Solicitors can:

• Ensure the secure and immediate immigration status of you and your children
• Quickly review your situation in the UK and that of your affected family members
• Review if you have a “good reason” for making a late application or if you are eligible for exceptional assurance
• Explain all of your options and recommend the best strategy to overcome being classed as an overstayer
• Deal with the Home Office
• Handle appeals, Administrative Reviews and Judicial Reviews on your behalf, ensuring you have the very best chance of success.

Speak to our immigration lawyers for a telephone consultation on 020 3744 2797 or complete our enquiry form.

Reference:

¹ GOV.UK: COVID-19: advice for UK visa applicants and temporary UK residents