Changes to reform the periods within which applications for further leave can be made by overstayers
While applications for further leave to remain for many rules-based applications are expected to be made in time, i.e. before any existing leave expires, any period of overstaying for 28 days or less is not a ground for refusal as far as those applications are concerned. This 28 day period was originally brought in so that people who had made an innocent mistake were not penalised, but retaining it sends a message which is inconsistent with the need to ensure compliance with the United Kingdom‟s immigration laws.
The 28-day period is therefore to be abolished. However, an out of time application will not be refused on the basis that the applicant has overstayed where the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made, provided the application is made within 14 days of the expiry of leave.
Additionally, for those who have been present on 3C leave (leave extended by section 3C of the Immigration Act 1971), the 28-day period is to be reduced to 14 days from the expiry of any leave extended by section 3C. Without this arrangement, the abolition of the 28-day period would mean that any further application made by persons in this position would be out of time.
For those whose previous application was in-time but decided before their leave expired, or was made out of time but permitted by virtue of the provision outlined in paragraph 7.56, the 28-day period will be reduced to within 14 days of:
- The refusal of the previous application for leave.
- The expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable).
- Any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
This is to ensure that individuals to whom these circumstances apply also have 14 days to make a further application.
Changes have also been made to the requirements for applicants for indefinite leave to remain to have completed a period of continuous lawful residence in the UK. These ensure that the Secretary of State will disregard any period of overstaying between periods of leave which, at the time the further application was made, fell to be disregarded under the previous 28 day period or the exceptions identified above. This is for reasons of fairness.
