Navigating the Latest Immigration Rules for Overstayers in the UK: A Comprehensive Guide for 2023

Staying beyond the expiration of your UK visa is a serious matter that, in most cases, can result in significant and long-lasting repercussions. These consequences include possible deportation, forced removal, detention, and various legal consequences which could hinder future immigration prospects.

Definition of Overstayer

Under UK Immigration law, the definition of ‘overstayer’ refers to an individual who remains in the UK beyond the period of time allowed by their visa or leave to enter/remain.

Prior to a person’s visa or leave to enter/remain expiring, they are generally expected to either leave the UK or apply for an extension or a new visa. Failing to do so and continuing to stay in the UK is viewed as overstaying.

On 24 November 2016, the Immigration Rules were amended to eliminate the 28-day grace period. This grace period allowed applications for leave to remain to be considered even if they were submitted within 28 days after the expiration of the previous leave, without risking refusal due to overstaying. The revised Immigration Rules do, however, include provisions for certain specific situations where current overstaying may not be considered a factor leading to refusal, but in most cases, it is now a valid reason for application refusal.

Excuses for Overstayers

There are few valid justifications for overstaying that the Secretary of State will consider when deciding an application. If the applicant or their representative had a valid, uncontrollable reason, provided with the application, for their inability to submit it on time, an exception to the rule may be provided. This is absolutely at the Secretary of State’s discretion.

This exception applies if the application is submitted within 14 days after the expiration of the current leave. Additionally, overstaying will not be considered if the applicant had previously submitted an in-time application which was rejected, and the current application is filed within 14 days of one of the following events:

• The rejection of the previous application for leave;
• The expiration of any leave extended under section 3C of the Immigration Act 1971;
• The expiration of the time limit for submitting an in-time application for administrative review or appeal (where applicable); or
• The conclusion, withdrawal, abandonment, or lapse of any administrative review or appeal.

It is important to note that submitting an application within the 14-day grace period for overstaying does not automatically reinstate or extend a migrant’s previous leave. An applicant who lacks valid leave when they submit their application remains classified as an overstayer from the moment their original leave expired and throughout the duration of their pending application.

How to avoid becoming an Overstayer

The Home Office does not provide reminders for visa or leave expiration. If you are uncertain about your status, please refer to your biometric residence permit, Home Office approval correspondence, or inspect any stamps or stickers in your passport to determine the expiry of your visa or leave to enter/remain.

Migrants have the option to voluntarily leave the UK upon expiration of their visa. From the date of expiration, they will have 30 days to leave the UK to safeguard their immigration status and preserve their right to re-enter the UK at a later date.

Consequences of Overstaying

Individuals who exceed the duration of their visa in the UK should be aware of the lasting repercussions. Opting to depart the UK voluntarily after the initial 30-day grace period comes with the potential risk of facing a ban on re-entry for a period ranging from one to ten years. Nevertheless, if you choose to leave the UK voluntarily within the first 90 days and bear the associated expenses, you may avoid receiving a re-entry ban.

Overstaying the permitted period of stay will be considered in all future UK immigration applications, assessed under the general criteria for admission. This may negatively impact any subsequent UK visa applications; the Home Office may decline your application due to concerns about your elevated risk of unlawful residence in the UK.

In cases where the reasons for overstaying are perceived as deceitful (intentionally exceeding the authorised stay without a valid explanation), attempting to re-enter the UK may not be possible. The responsibility will rest on you to demonstrate your good character, particularly if you have previously faced deportation from the UK.

Seeking Help

Staying beyond the allowed period poses potential immigration complications. While it’s ideal to adhere to visa timelines and plan ahead of its expiration, in the event that your visa has already expired, prompt action is essential to ascertain available alternatives and submit the required application without further delay.

Clarkslegal specialises in offering expert guidance for various UK immigration applications. If you have enquiries regarding your UK visa, please don’t hesitate to contact our immigration lawyers for assistance.