Under certain circumstances, an overstayer in the UK is allowed to apply for leave to remain in the UK and succeed in the application despite being an overstayer.
An overstayer is a person who has stayed in the UK beyond the expiry date of his leave to remain in the UK. According to paragraph 6 of the Immigration Rules, “Overstayed” or “Overstaying” means the applicant has stayed in the UK beyond the latest of:
(i) the time limit attached to the last period of leave granted, or
(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971.
Any applicant who is applying for leave to remain must not have remained in the UK after the expiry of their original grant of leave, on the date of their application. Remaining in the UK after leave has expired is commonly known as overstaying.
Applying For Leave To Remain Within 14 Days Of Overstaying In The UK
You can apply for leave to remain within 14 days of overstaying in the UK if you meet the requirements as set out in paragraph 39E of the Immigration Rules. Paragraph 39E of the Immigration Rules provides that:
"39E. This paragraph applies 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(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing."
Applying For Leave To Remain Where The Applicant Has Overstayed For More Than 14 Days
Your application for leave to remain can be refused by the Home Office UKVI if you have overstayed for more than 14 days and do not meet the requirements of paragraph 39E of the Immigration Rules as required by the relevant Immigration Rules governing grant of leave to remain. However, the UKVI can exercise discretion in disregarding overstay where the applicant was prevented from making an in-time application due to circumstances beyond the control of the applicant.
The UKVI would normally decide each case on its merits, but examples of reasons that might be considered beyond the control of applicants 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
If you have overstayed more than 14 days and this was due to circumstances which prevented you from making an in-time application, we can provide the required legal help and assistnace with your application for leave to remain and argue that discretion should be exercised by the Home Office UKVI in your favour in disregarding the overstay.
Immigration Applications Which Are Not Affected By Overstay Of Any Number Of Days
There are certain immigration applications for leave to remain which can be made to the Home Office UKVI regardless of the number of days the applicant has overstayed in the UK. The overstay in such cases does not affect the application at all.
Various applications which can be made to the Home Office UKVI by overstayers (regardless of how long they have overstayed) are as follows:
|Switching Into Spouse Visa (10 Years Route) where the applicant is on an immigration bail||Switching Into Civil Partner Visa (10 Years Route) where the applicant is on an immigration bail|
|Switching Into Unmarried Partner Visa (10 Years Route) where the applicant is on an immigration bail||Switching Into Same Sex Partner Visa (10 Years Route) where the applicant is on an immigration bail|
|ILR as Bereaved Partner Of A British Citizen or Settled Person||ILR as Victim Of Domestic Violence|
|Switching Into Parent Visa (10 Years Route) where the applicant is on an immigration bail||Initial Application On The Basis Of 20 Years Long Residence|
|Initial Application Under 7 Years Child Residence Route||Initial Application As A Person Who Is Over 18, Under 25 And Has Lived Half His Life Continuously In The UK|
|Initial Application For Leave To Remain On The Basis OF Significant Obstacles To Integration In Applicant's Country Of Origin||Initial Application For Discretionary Leave (10 Years Route)|
|Residence Card As Family Member Of An EEA National||Derivative Residence Card|
|Extended Family Members Residence Card||Application For Asylum In The UK|
|Further Submissions For Fresh Claim||ILR As A Refugee [SET(P) Application]|
|ILR - Humanitarian Protection - SET (P) Application||Initial Leave To Remain As Stateless Person|
|Switching Into Leave TO Remain As A Family Member Of A Stateless Person||ILR As A Bereaved Partner Of Member Of HM Forces|
|ILR As A Partner Of Member Of HM Forces Who Is Victim Of Domestic Violence||ILR As A Bereaved Child Of Member Of HM Forces|