New immigration rules which replaces the 28 days out of time application
Any applicant who is applying for leave to remain must not have remained in the UK 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. The Immigration Rules were amended with effect from 24 November 2016 to abolish the 28 day grace period, under which applications for leave to remain were not refused on the basis of overstaying if made within 28 day of the expiry of leave.
The Immigration Rules now provide for current overstaying to be disregarded in a limited number of scenarios but otherwise it is a now a ground for refusal.
First, overstaying will be disregarded if 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 it could not be made in time, provided that the application is made within 14 days of the expiry of leave. Second, overstaying will be disregarded where the applicant previously made an in-time application, or an application which fell within the first exception above, which was refused and the current application was made within 14 days of:
- the refusal of the previous application for leave
- the expiry of any leave extended by section 3C of the Immigration Act 1971
- 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- any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Migrant’s status following submission of an application within 14 days of overstaying
The submission of an application within the 14 day consideration 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 2 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.
Contact ICS Legal if you are unsure how this changes on 24th November 2016 impacts your application on 0207 237 3388 or email us your enquiry to info@icslegal.com.
