Applications from overstayers (non family routes) Valid from 20 October 2014
Applications from overstayers (non family routes) This guidance is based on the Immigration Rules. Page 1 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) About this guidance Refusal on grounds of overstaying Armed forces cases This guidance is for caseworkers who consider applications for further leave to remain made on or after 9 July 2012 by an applicant without valid leave in certain routes. In this section Changes to this guidance The routes it covers are: Contact all work and study, including the points-based system visitors long residency UK ancestry, and most discharged Her Majesty’s (HM) forces. Information owner Related links Links to staff intranet removed It does not apply to: Applications for leave to remain under the above routes made before 9 July 2012. You must decide these in line with the rules in place on 8 July 2012. The following armed forces routes: o Dependants applying for leave to enter or remain as the family member of a serving HM forces member. o Those applying under an armed forces concession. For example, Gurkhas discharged before July 1997 applying under the special discretionary arrangements. Applications for administrative review under Appendix AR of the Immigration Rules. External links Immigration Rules: part 6A: paragraph 245 Changes to this guidance – This page tells you what has changed since the previous version of this guidance. Contacts – This page tells you who to contact for help if your senior caseworker or line manager can’t answer your question. Information owner – This page tells you about this version of the guidance and who owns it. Safeguard and promote child welfare – This page explains your duty to safeguard and Page 2 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 promote the welfare of children and tells you where to find more information. Page 3 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) Changes to this guidance About this guidance Refusal on grounds of overstaying Armed forces cases This page lists changes to the ‘Applications from overstayers (non family routes)’ guidance, with the most recent at the top. Date of the change 20 October 2014 Details of the change Change request: Changed to reflect application of the policy in light of the Immigration Act 2014 changes 24 March 2014 Six month review by the modernised guidance team: Refusal on grounds of overstaying: o sub-heading ‘Calculating the date the period of overstaying begins’, third paragraph, first bullet point changed o sub-heading ‘Examples of calculating when the period of overstaying begins’, link to download replaced by link to ‘In this section’ page Applications from overstayers (non family routes) case examples: o new page Minor housekeeping changes. Related links Refusal on grounds of overstaying Applications from overstayers (non family routes) case examples See also Contact Information owner Links to staff intranet removed For previous changes to this guidance you will find all earlier versions in the archive. See related link: Overstayers - archive. Page 4 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) Refusal on grounds of overstaying About this guidance Refusal on grounds of overstaying Armed forces cases This section tells you about the 28 day period of overstaying and what you can consider as exceptional circumstances. Any applicant who is applying for leave to remain must not have remained in the UK for longer than 28 calendar days 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. In this section Applications from overstayers (non family routes) case examples Related links Links to staff intranet removed The 28 day period of overstaying is calculated from the latest of: the last day of their latest grant of leave to enter or remain, or the end of any extension of their leave under sections 3C or 3D of the Immigration Act 1971. External links Immigration Rules: part 1: paragraphs A34 and 34C Calculating the date the period of overstaying begins You must calculate the date on which the period of overstaying begins based on the last day of the migrant’s latest grant of leave to enter or remain, or when leave under section 3C or 3D ended. You must take into account any variation on the duration of leave, such as a curtailment decision. Section 3C of the Immigration Act 1971 The first day of the 28 day period begins on the first day after the day the migrant’s leave has expired. This is unless the migrant has submitted an in-time application which has not been decided before their leave expires. Check an employee's right to work documents Section 3D of the Immigration Act 1971 If the migrant did make an in-time application and the application is subsequently refused, the migrant’s leave will have been extended by virtue of section 3C of the Immigration Act 1971 while: An in-time appeal (under section 3C(2)(b)) or application for administrative review (under section 3C(2)(d)) could be brought. The extension of leave during the period Page 5 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 that an appeal or administrative review could be brought does not rely on the individual exercising their right of appeal or administrative review. If no appeal or administrative review is brought the extension of leave ends at the same time as the deadline for raising an in-time appeal or administrative review. Please note that if a migrant makes an out of time administrative review application in respect of an original application that was in time, and the Home Office accepts the administrative review as valid because it would be unjust not to consider the application, 3C leave continues from the date the Home Office decides to reconsider the application. An appeal (under section 3C(2)(c)) or administrative review (under section 3C(2)(d)) against that decision is pending. If an appeal or administrative review is brought the leave is extended during any period that the appeal or administrative review is pending, ending when it is finally determined, withdrawn or abandoned. An appeal is also pending during the period that an application for permission to make an onward appeal to the Upper Tribunal or to the relevant appellate court, as specified by the Upper Tribunal, for instance the Court of Appeal in England and Wales, the Court of Session in Scotland or the Court of Appeal in Northern Ireland, could be made or is awaiting a decision. An administrative review (under section 3C(2)(d)) against that decision is pending. If an administrative review is brought (under section 3C(2)(d)) the leave is extended during any period that the administrative review is pending, ending when the application is withdrawn, rejected as invalid or when the outcome of the administrative application is served, as set out in paragraph AR2.9 of Appendix AR of the immigration rules. Please note there will be a right to apply for a second administrative review if the outcome of the first review is that the refusal decision is varied with additional reasons for refusal given. Where an applicant is entitled to have a second administrative review, and submits one, their 3C leave will continue while the review is pending as described above. For further information on section 3C of the Immigration Act 1971, including how to calculate when that leave ends, see related link: 3C and 3D leave. Statutorily extended leave continues while an in-time application has been made and is with the Home Office pending a decision on its validity, Therefore: Page 6 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 if an application for leave to remain is rejected as invalid (rather than refused) after their leave expired the period of overstaying for a further application for leave to remain must be calculated from the date the migrant is deemed to have received the notice of invalidity. Under paragraphs A34 and 34C of the Immigration Rules, the notice of invalidity must be given in writing and is deemed to be received on the date that it is given, except where it is posted, in which case it is deemed to be received on the second day after it was posted, excluding any day which is not a business day. The first day of the 28 day period begins on the first day after the notice is deemed to have been received. if a person has 3C leave at the point of applying for an administrative review and that application is rejected as invalid (rather than refused) the period of overstaying for a further application for leave to remain must be calculated from the latest of: o the date the migrant is deemed to have received the notice of invalidity. Under paragraph 34T of the Immigration Rules, the notice of invalidity must be given in writing. Unless the contrary is shown the notice of invalidity is deemed to be received on the second working day after the day on which it was posted where it is sent by post, on the day it is sent where it is sent by electronic mail and on the day on which it is given where it is given in person. o the date that an in-time application for administrative review (under section 3C(2)(d)) could be brought. For cases that have a right of appeal against a decision to curtail their leave with immediate effect or to revoke protection status, their leave is extended by section 3D of the Immigration Act 1971 while: An in-time appeal could be brought (section 3D(2)(a)). The extension of leave during the period that an appeal could be brought does not rely on the individual exercising their right of appeal. If no appeal is brought the extension of leave ends on the same date as the deadline for raising an in-time appeal. An appeal against that decision is pending (section 3D(2)(b)). If an appeal is brought the leave is extended during any period that the appeal is pending, ending when it is finally determined, withdrawn or abandoned. It is also pending during the period that an application for permission to make an onward appeal to the Upper Tribunal, or to the Page 7 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 relevant appellate court as specified by the Upper Tribunal, for instance the Court of Appeal in England and Wales, the Court of Session in Scotland or the Court of Appeal in Northern Ireland, could be made or is awaiting determination. Please note that statutorily extended leave does not apply to cases that are liable to removal under section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014) following the curtailment of leave with immediate effect under paragraphs 323 or 323A of the immigration rules. These cases have no right of appeal and no right of administrative review and therefore leave cannot be statutorily extended, For further information on section 3D of the Immigration Act 1971, including how to calculate when that leave ends, see related link: 05.0 - Section 3C of the Immigration Act 1971 (As Amended). Examples of calculating when the period of overstaying begins Case examples can be found in the related link. If you are refusing an application because of overstaying You must consider any exceptional circumstances that stopped the applicant applying within the 28 days. The ‘exceptional circumstances’ threshold is high, but can include: The migrant or their representative could not submit an application on time because of: o serious illness (supported by the appropriate medical documentation) o travel or postal delays. Or They are not able to provide the necessary documents because of exceptional or unavoidable circumstances beyond the applicant’s control. For example: o The Home Office has lost or delayed returning travel documents. o The applicant is having problems replacing lost documents as a result of theft, fire or flood. They must provide evidence to show the date of loss and the date they requested replacement documents. If you decide to use discretion it must be authorised by a senior caseworker, at senior executive officer (SEO) grade or above. In these circumstances you must grant leave under the rules, with the same duration and conditions as a normal grant of leave under the rules Page 8 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 attached to it. The decision letter must be clear that leave is being granted because the migrant met all other requirements of the route and you have accepted there were exceptional circumstances which prevented the applicant from applying within the 28 day period. Migrant’s status following submission of an application within 28 days of overstaying The submission of an application within the 28 day period of overstaying does not mean the migrant’s previous leave is either re-instated or extended. Therefore an applicant without valid leave at the point they submit their application continues to be an overstayer from the point their leave expired and throughout the period their application is pending. As the applicant has no leave during the period their application is pending they have no permission to work in the UK. Any employer found employing a person who does not have permission to work in the UK may be liable to a civil penalty for employing an illegal worker under section 15 of the Immigration, Asylum and Nationality Act 2006. An employer also commits a criminal offence under section 21 of the 2006 Act if they knowingly employ an illegal worker and may face up to two years’ imprisonment and/or an unlimited fine if the case is dealt with at Crown Court. For more information, see related link: Check an employee's right to work documents. Page 9 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) Applications from overstayers (non family routes) case examples About this guidance Refusal on grounds of overstaying Armed forces cases This page gives you some examples of how to calculate when the period of overstaying begins. Related links In-time application refused, appeal right not exercised The migrant had leave until 1 March 2012 and submitted an application for further leave on 26 February 2012. The application was refused on 31 July 2012, but the migrant did not exercise their right of appeal. In this case the migrant’s leave was extended during the period: their application was awaiting determination, and they could have brought an appeal against the refusal decision. Therefore the migrant began overstaying on 17 August 2012, based on: case refused on 31 July 2012 adding two days for deemed postal service gives 2 August 2012 adding 10 working days while an in-time appeal could be brought gives 16 August 2012 first day of overstaying is 17 August 2012. Please note that from 20 October 2014 changes to the Tribunal Procedure Rules will mean that the period for bringing an in-time appeal will be 14 calendar days. In-time application refused, appeal right exercised, refusal decision upheld The migrant had leave until 1 March 2012 and submitted an application for further leave on 26 February 2012. The application was refused on 31 July 2012. The migrant exercised their right of appeal and on 1 October 2012 the court upheld the refusal decision. No onward appeal was made. In this case the migrant’s leave was extended during the period: Page 10 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 their application was awaiting determination they could have brought an appeal against the refusal decision, and their appeal is pending. Therefore the migrant began overstaying on 16 October 2012, based on: appeal determined on 1 October 2012 adding 10 working days while an in-time onward appeal could be brought gives 15 October 2012 first day of overstaying is 16 October 2012. In-time application, rejected after leave expired The migrant had leave until 1 March 2012 and submitted an application for further leave on 26 February 2012. The application was rejected on 31 March 2012. In this case the migrant began overstaying on 3 April 2012, based on: case rejected on 31 March 2012 adding two working days for deemed service of the note of invalidity gives 2 April 2012 first day of overstaying is 3 April 2012. Page 11 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) Armed forces cases About this guidance Refusal on grounds of overstaying Armed forces cases This page tells you how to calculate the 28 day period for armed forces cases and what you can consider as exceptional circumstances. Related links For armed forces cases the 28 day period runs from the last date of leave after their discharge. Foreign and Commonwealth cases (including Gurkhas) are normally granted 28 days leave to remain (LTR) from the date of their discharge to regularise their status in the UK, but this does not always happen and LTR is not granted automatically. You must not assume the last date of leave will be 28 days after discharge from Her Majesty’s (HM) forces. Where 28 days’ leave is granted, the period of overstaying begins on the day after that leave expires. If no leave is granted, the 28 day period of overstaying begins on the day after the date of discharge. Exceptional circumstances For armed forces cases, exceptional circumstances which may justify exercising discretion include reasons which directly relate to the individual’s armed forces service. For example: deployment abroad at short notice, or the commanding unit have retained or lost their service personnel’s documents. This also applies to dependants who cannot make an application under the armed forces rules because their military sponsor cannot submit documents due to service related reasons. Page 12 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) Contact About this guidance Refusal on grounds of overstaying Armed forces cases This page explains who to contact for more help with a specific case in the applications from overstayers (non family routes) category. If you have read the relevant Immigration Rules and this guidance and still need more help with this category, you must first ask your senior caseworker or line manager. If the question cannot be answered at that level, you may email the enforcement policy team in the immigration and border policy directorate (IBPD), for guidance on policy. See related link. Related links Changes to this guidance Information owner Links to staff intranet removed Changes to this guidance can only be made by the guidance, rules and forms team (GRaFT). If you think the policy content needs amending you must contact the enforcement policy team, who will ask the GRaFT to update the guidance, if appropriate. The GRaFT will accept direct feedback on broken links, missing information or the format, style and navigability of this guidance. You can send these using the link: Email: Guidance, rules and forms team. Page 13 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014 Applications from overstayers (non family routes) Information owner About this guidance Refusal on grounds of overstaying Armed forces cases This page tells you about this version of the ‘Applications from overstayers (non family routes)’ guidance, and who owns it. Version Valid from date Policy owner Cleared by director Director’s role Clearance date This version approved for publication Approver’s role 6.0 20 October 2014 Enforcement Policy Sonia Dower Director, operational policy and rules 28 September 2012 Kristian Armstrong Approval date 14 October 2014 Related links Changes to this guidance Contact Links to staff intranet removed Head of Criminality and Enforcement Policy Changes to this guidance can only be made by the guidance, rules and forms team (GRaFT). If you think the policy content needs amending you must contact the enforcement policy team, who will ask the GRaFT to update the guidance, if appropriate. The GRaFT will accept direct feedback on broken links, missing information or the format, style and navigability of this guidance. You can send these using the link: Email: Guidance, rules and forms team. Page 14 of 14 Guidance – Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014
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