What to do if Forced to Overstay in the UK Due to Illness
If you have overstayed in the UK due to illness, then you will understandably be concerned that you may be in breach of the law, and you may be required to leave the country. The term ‘overstayer’ has very strong connotations in our current political climate, but the fact is that many people from outside of the European Economic Area (EEA) do become overstayers through no fault of their own. Imagine the case of an individual who has a serious road traffic accident and is in a coma for several weeks, it would be unfair to blame that person for being in breach of immigration law. In this article, we will discuss how immigration policy applies to overstayers who are too ill to extend their visa, apply for a new visa, or leave the country.
What Will Happen if I am an Overstayer?
The consequence of being classed as an overstayer by the Home Office is that you will be committing a criminal offence which can seriously jeopardise your future immigration prospects in the UK. If you do plan to leave the UK and you are able to do so, you should make plans to leave the country as soon as possible. If your departure is delayed, even if you have no plans to return to the UK, it is advisable to gather evidence of your illness (e.g. perhaps in the form of a dated letter from your GP) which you can use if you need to justify why you overstayed in the future.
If you were on a work visa which has now expired, and you have not applied to extend your leave, you will not be able to continue to work even if you do apply for an extension of your tier 2 visa (until you are granted leave to remain). If your employer continues to employ you during this period, they also risk a civil fine of up to £20,000.
If you have overstayed for 30 days or more, you will face a mandatory 12-month ban on returning to the UK.
The other serious impact of overstaying relates to applications for settlement in the UK. In the case of R (Ahmed) v Secretary of State for the Home Department  EWCA Civ 1070, the Court of Appeal came to the conclusion that overstaying by even one day will result in any time accrued towards ILR being reset.
Will I be an Overstayer if I Have Been Seriously Ill?
If you have been unable to extend your visa, apply for a new one, apply for indefinite leave to remain, or leave the country, and your current visa has expired, then, yes, you are technically an overstayer. This does not mean you must leave immediately; this depends on your future plans.
Paragraph 39E of the immigration states that there may be exceptions for overstayers where:
“(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
In the context of illness as a reason for overstaying, it is part 1 of paragraph 39E which is relevant. This confirms that if you have overstayed, you may be able to make an application within 14 days of your leave expiring if there is a good reason ‘beyond your control’ why you could not apply in time. Unfortunately, it is down to the judgment of the Home Office whether the reason you provide is sufficient for them to apply this exception.
If you do not make an application within 14 days of the expiry of your most recent leave, then you will be unable to do so, no matter how strong or compelling your reasons for being delayed. As such, the 14-day rule is the only chance provided by the Home Office to avoid being classed as an overstayer. It may be possible to make an application based on Article 8 of the European Convention on Human Rights (ECHR), but this would only be possible in the most persuasive of cases.
What If I Overstayed Due to Contracting COVID-19?
2020 has been something of an exceptional year for the overstaying policy. In fact, it is safe to say that for more than half of the year, if you have not applied to extend your visa, applied for a new visa, left the UK, or secured ILR, then you will not be classed as an overstayer. The Home Office website states the following, “If your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. However, you must now do so by 31 August 2020 or make arrangements to leave the UK”.
If you did technically overstay for any reason in the window of time between 24th January 2020 and 31st August 2020, then you need to take action immediately – to leave or make a new application.
The COVID-19 pandemic and resulting lockdown will provide many people who have been forced to overstay with an exception which will allow them to make a new immigration application, or leave the UK without incurring any negative penalty. If you have overstayed outside of this timeframe, it is recommended that you seek the guidance of an immigration Solicitor who will be able to explain your options.
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