Overstaying Visa - Grace Periods

[durhamboy]

For many reasons my Thai wife and I have decided to permanently relocate to Thailand.

 

We have been here 8 years and her current FLR Spouse visa expires in December.

 

Because of covid and selling our house etc. we may not be able to leave before her visa expires.

 

Citizens Advice and other immigration solicitors talk about a 30-day period of grace, i.e. if she left within 30-days of her visa expiry she would not face any criminal sanctions and, furthermore, would not be banned from re-entering the UK for 1 to 10 years. In fact one immigration solicitor mentioned a 90-day grace period.

 

I've tried to search for a government website that specifies this grace period. The only thing that I found was a 14-day grace period if you are re-applying for FLR. 

 

So my query is, is this concession something that is just done in practice rather than specified by HMG as a right? Anyone got any experience of this?

 

Btw, I realize that there is a special procedure now in place for requesting extensions due to covid. However, any request is not guaranteed to be granted so could cause us major problems if it was refused. Many thanks.

[Tony M]

Your post lacks some information, I think. Why doesn't your wife have ILR after 8 years in the UK ?  And when, exactly, are you planning on leaving the UK ?

 

The only information I can find that seems reliable is about 2 years old now, and comes from a regulated UK immigration advisor. Based on the info that you have given in your post, their advice seems to sum up your situation:

 

What happens if my visa expires while I’m in the UK?

If your UK visa has expired while you are still in the country, you will be out of status and deemed an ‘overstayer’.

The Home Office does not routinely notify or remind visa holders of visa expiry. It is the visa holder’s responsibility to monitor their individual visa expiry.

What is the legal position on overstaying?

It is a criminal offence under section 24 of the Immigration Act 1971 to overstay your visa without reasonable cause.

If your visa has expired, you have 30 days to leave the UK voluntarily at your own expense before you face a ban on re-entry. Alternatively, you may seek to rely on the 14 day rule.

 

What is the 14 day ‘with good reason’ rule?

Previous rules allowed for a 28-day grace period without the requirement to make excuse, but any degree of leniency afforded under the grace period was abolished as of November 2016 and replaced by this stricter ‘14-day with good reason rule’.

Under the current rules, for late applications made on or after 24th November 2016, the Home Office will disregard a period of overstaying provided you apply for a new visa, or renewal of your existing visa, within 14 days of your previous visa expiring and that you can evidence ‘good reason’ for having overstayed your visa permission.

 

What qualifies as a ‘good reason’?

The Home Office has provided outline guidance on what constitutes acceptable ‘good reason’ for missing your visa expiry deadline. You must be able to demonstrate that there were exceptional circumstances and be able to provide evidence to back up your claim.

For example if you were receiving emergency treatment in hospital, or due to bereavement of a close family member or having a late reply from an educational institution that informed you of acceptance to study.

Unacceptable reasons include forgetting your deadline or being too busy with work or studies.

You would need to support your reason with evidence. A hospital stay for example would require an official letter that states the date of admission and discharge as well as what you were treated for. This must be submitted with your application within the 14 day period.

 

Awaiting a decision on your application

If you are awaiting a decision on an application and your visa has expired, you will be required to suspend any activities that your previous visa permitted (such as working) until a decision has been made and a new visa granted.

It is a criminal offence to continue to work in the UK after your visa has expired. If your employer is aware that your visa has expired, they are also committing a criminal offence by continuing to allow you to work and they may also risk Home Office penalty action.

 

What if you apply in time, but your application is rejected?

Provided you made your application for renewal before your current visa expired, you will have 14 days after receiving the refusal to apply again (if you are permitted to) and in doing so avoid overstaying.

In this instance, the good reason rule will not apply but your new application has to be made within 14 days of the refusal letter. Should you fail to apply within that period, you will then be considered an overstayer.

 

Leaving the UK

Paragraphs A320 and 320(7B) of the Immigration Rules state that you have to leave the UK voluntarily within 30 days of your visa expiring in the UK.

If you leave the UK voluntarily after the 30 day period, you could be banned from re-entering. The length of ban will depend upon when you leave the UK, whether you left voluntarily or were deported and whether you have the funds to pay to go back to your country of origin.

If you do not leave voluntarily, you risk enforced removal by deportation.

 

Will overstaying affect your ability to reenter the UK?

There are long term consequences for individuals who overstay their visa period in the UK. If you leave the UK voluntarily after the 30 day period, you risk being banned from re-entering the UK for one to ten years. However, if you have left the UK voluntarily within the first 90 days and at your own expense, you may not receive a re-entry ban.

Overstaying your authorised period of leave will be taken into consideration in any future UK immigration applications under general grounds of admissibility. This could have a negative impact on any future applications you make for UK visas; the Home Office may refuse your application on the grounds that you are a high risk of staying on illegally in the UK.

If the reasons are seen as deception (deliberately overstayed without good reason), there are significant consequences when trying to re-enter the UK. The onus will be on you to prove you are of good character, especially if you have been previously deported from the UK.

 

Consequences of overstaying your visa

Should you not be able to prove that you have good reason for applying after your visa has expired you may face some serious consequences. The 14 day grace period does not give you much time to prepare your good reason, so it is important to act swiftly and seek legal counsel.

You will not be able to get your visa renewed if you have already exceeded the 14 day limit.

It is a criminal offence to overstay your visa without good reason. You will not be lawfully allowed to work, and if caught doing so, could face a prison sentence.

If your period of overstay exceeds the 90 day limit, you will more than likely face an exclusion on re-entering the UK for at least one year.

 

Do you have any rights as an overstayer?

Your rights are necessarily restricted if you become an overstayer. You will still be able to use the emergency services in the UK, police, fire brigade and ambulance. You will also still be able to access essential healthcare treatment, including ante-natal support.

If you have children under the age of 16, they may still attend school during the period you remain in the country after your visa expires.

 

 

[durhamboy]

Tony M - many thanks for the comprehensive analysis. Very much appreciated.

 

I took a look at para. 320(7B) of the Immigration Rules which addresses the grounds for refusal of subsequent visas. It says :-

 

"

1. (7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach)by:
   1. (a) Overstaying;
   2. (b) breaching a condition attached to his leave;
   3. (c) being an Illegal Entrant;
   4. (d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

1. unless the applicant:
   1. (i) overstayed for-
      1. (a) 90 days or less, where the overstaying began before 6 April 2017: or
      2. (b) 30 days or less, where the overstaying began on or after 6 April 2017
      3. and in either case, left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;"

So that seems to clear up the 30 day v 90 day overstay, i.e. a person can only overstay 90 days without risk of a ban where the overstay began before 6 April 2017 therefore making that clause (i)(a) now redundant.

 

Btw, my wife doesn't have ILR because she cannot pass LITUK. If she does overstay it will only be for a few days for a number of very good reasons and she will leave the UK well within the 30 days.

[Tony M]

You're welcome.  Be aware of paragraph 320(11), which is not a "ban" as such, but can (only) be used if there are other "aggravating" circumstances in addition to the overstaying, eg deception in an application (including previous applications. I don't think your wife would fall into that category, but it's worth knowing that this paragraph exists.