Unintended overstay of UK Visas: ‘Will I be able to apply for further leave to remain?’
While timely application renewals are significant for anyone residing in the UK with a visa, there can be situations where an overstay might occur unintentionally. In this article, we will explore what happens in such cases by examining a recent client’s situation and the Home Office’s considerations based on the Immigration Rules.
What is overstaying?
“Overstayed” or “overstaying” means the person has stayed in the UK beyond the latest of:
(a) the time limit attached to the last permission granted; or
(b) the period that the permission was extended under section 3C or 3D of the Immigration Act 1971.
One of our clients recently reached out in a bit of a panic. Her spouse visa has already expired for more than 7 days, but the good news is she contacted us right away.
We were able to let her know there might still be a chance to stay in the UK legally and apply for further leave to remain.
Here’s the catch: she would need to submit an application within 14 days of the expiry date of her last permission to stay in the UK and she needs to provide the Home Office with a good reason why she was late.
At this point, let’s refer to the paragraph 39E of the Immigration Rules
It 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 or rejection of a previous application for leave which was made in-time; and
(b) within 14 days of: (i) the refusal or rejection 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 in relation to the previous application (where applicable); or
(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing;
Caseworkers must give thought to:
- the plausibility of the reasons
- whether the reason was genuinely outside the applicant’s control or whether the applicant is describing difficulties that could realistically have been surmounted
- the credibility of evidence provided Caseworkers must 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 (CAS)
Starting the application process:
We met with the client to discuss their situation and began working on their matter. One of the initial steps was collecting all necessary documentation to complete the application form.
Challenges in document collection:
The client provided the general documentation typically required for a Spouse Visa extension, such as proof of relationship and financial records. However, gathering the required documents can sometimes present difficulties. In this case, the client’s sponsor, who was a company director, needed to provide additional documentation under Appendix FM of the Immigration Rules (SE Specified Evidence). This appendix outlines specific requirements for sponsors who run businesses.
Medical reasons for delay:
Unfortunately, the client experienced a health issue relapse around the time her visa expired. This caused her significant difficulty and prevented her from submitting the application and documents on time. We documented this situation with medical evidence to support the out of time application.
Building a strong case:
Despite these challenges, we diligently prepared the client’s case and provided detailed explanations addressing each relevant immigration rule. We were confident that the applicant met all the requirements for leave to remain under Appendix FM.
Successful application and moving forward:
The application was submitted, along with the client’s biometrics. We’re happy to inform the client that the Home Office approved the application without requiring any further information within the estimated timeframe.
Planning for the future:
Following the successful visa extension, the client felt relieved. Looking ahead, she wanted to discuss future application for indefinite leave to remain after 2.5 years to avoid similar situations. We were delighted to offer ongoing support and guidance for her future applications.
So, don’t wait until the last minute:
This case demonstrates the importance of looking for professional advice when navigating UK immigration processes. Even with challenges, a well-prepared application with supporting documentation can lead to a successful outcome.
While our client’s quick action helped in their situation, it’s important to remember that avoiding an overstay altogether is the best course of action.
By staying organised and proactive, you can ensure stress-free experience managing your UK visa.
