How overstaying on your visa can cause serious problems

The worst aspect of the current immigration rules on overstaying is that it becomes a serious legal problem after just 14 days. There is nothing you can do to rectify the situation by belatedly applying to renew it. You have to leave the country immediately, with all the incurred trauma and expense and without any guarantee that you will ever be able to return.

In accordance with paragraph 39E into Part 1 of the Immigration Rules the Home Office will disregard a period of overstaying provided that:

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.

Guidance issued by the Home Office offers some examples of a “good reason”:

  • 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

Imagine you are a successful business man. You have arrived into the UK as a sponsored employee on a Tier 2 work visa and had lived in the UK continuously for five years, making you eligible for indefinite leave to remain (ILR).

You just passed the Life in the UK test and ready to apply for indefinite leave to remain. As you are completing the form and inputting your biometric card details, you notice that your visa had actually expired over 30 days ago. It was an easy mistake to make, you are a very busy man and you just got the month wrong.

Perhaps you were hoping that your employer or the Home Office would have reminded you that it was expiring. However, your employer is not obliged to keep track of your visa situation and the Home Office does not issue reminders.

After you discovered your mistake, you had been a knowing overstayer for over a month which meant that you were committing an ongoing criminal offence.

You had to urgently pack your bags and leave the country and are unable to apply for most types of entry clearance because of having overstayed by more than 30 days. Even if this re-entry ban hadn’t applied, you could not just apply for a fresh Tier 2 visa from abroad, as that requires a mandatory twelve month “cooling off period”.

Luckily for you, you have been in a relationship with a British citizen for over two years. You were able to return to your home country, work remotely during this time, and apply for a priority partner visa.

You can return to the UK with a partner visa but your clock for ILR has reset to zero and so you will not be eligible for ILR for another five years, and citizenship one year after that. 

Your error cost you, at minimum, about £7,150 in additional visa application fees. This does not take into account priority processing charges, legal fees, urgent flights, and accommodation costs while waiting abroad for a visa. 

Posted on Oct 31, 2019.

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