What if Your Visa Expires While Waiting for Another One in the UK?
We are contacted regularly by migrants in the UK who are concerned about their immigration status, very often because their current visa has expired. If you are worried that you may be classed as an ‘overstayer’ in the UK, it is important to take action as soon as possible to verify your position, and if necessary, take appropriate action. We know at first hand that most situations can be brought under control and a person’s immigration status ‘regularised’ with the right approach to dealing with UK Visas and Immigration (UKVI) following the recent immigration rules for overstayers. In some cases, those who are concerned they do not have permission to be in the country are worrying unnecessarily as they have legal immigration status. In this article, we will explain what happens if your visa expires while waiting for a new visa application to be processed, including the provision of section 3c leave.
What does the law say about overstaying as a migrant in the UK?
Section 24 of the Immigration Act 1971 makes it clear that overstaying is a criminal offence which can lead to a fine or even imprisonment; “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: if, 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”. As such, anyone who remains in the UK past their visa expiry date is classed as an overstayer. This is not the case, however, if you have:
- Applied for a new visa
- 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, 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
Am I protected as long as I submit my new visa application on time?
In general, yes, but not always. 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. UKVI gives an example in their guidance of how this situation can give rise to overstaying in retrospect; “Leave expires on 21 March. An application is made on 21 March to extend leave. The application is invalid as mandatory documents are missing. The applicant is given an opportunity to provide the missing documents. The missing documents are not provided, and the application is rejected as invalid on 30 March. The person will have been without leave from 22 March; their leave having expired on 21 March”. As such, always keep an eye on your email and spam folder once your application for a visa or visa extension has been submitted in case such a request is received from UKVI.
Can I continue to work or study if I apply for a visa extension in time?
Yes, the section 3c leave rules state that you will be subject to the same visa rules and conditions as your current visa (even if it has now expired) as long as you applied for your extension before it expired. The rules state, “A person who has section 3C leave remains subject to the conditions attached to their extant leave unless the conditions of their leave are varied by the Secretary of State. For example, a person subject to a condition allowing employment may continue to work as before. Any restrictions on the type of employment allowed or the number of hours they can work will still apply”.
This article only provides a brief summary of what happens in the event that a person applies for a new visa and their current visa expires while a decision is pending. Due to the rules on the validity, it is essential that when you do submit your application, you are eligible, you pay the application fee in full, and you upload all of the documents requested. If you are unsure whether you are eligible for section 3c leave, speak to an immigration Solicitor as soon as possible.
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