The government recently announced changes to the Immigration Rules for immigration applications made on or after 24 November. Here, we take an in depth look at one of the announced changes – the 28-day grace period.
The Statement of Changes
On 3 November, the government announced the Statement of Changes to the Immigration Rules (HC 667). The explanatory note can be accessed here.
The changes mainly sought to implement the Migration Advisory Committee’s (MAC) recommendations into the Tier 2 immigration categories. Having studied the report by MAC, it is fair to say that many of the contents of the Statement of Changes were as expected. See my earlier blog post .
Yet, there was one change to the Immigration Rules that was not anticipated. That is, the 28-day grace period.
Background to the 28 days’ grace period
Where a person remains in the United Kingdom (UK) beyond the expiry of their visa, they will be deemed to have ‘overstayed’ their leave and could be subject to removal directions.
What happens if the individual submits an in-time application to UK Visas and Immigration (UKVI) to extend or vary their leave, but fails to receive an immigration outcome prior to the end of the visa?
Due to an amendment to the Immigration Act 1971 referred to as ‘section 3C leave’ that individual will be prevented from becoming an overstayer whilst they are awaiting a decision on an in-time application.
Therefore, a person will have section 3C leave if:
- They have limited leave to enter or remain in the UK
- They apply to UKVI for variation of that leave
- The application for variation of leave is made before the leave expires
- The leave expires without the application for variation having been decided
- The application for variation is neither decided nor withdrawn
(This applies to appeals also but subsequent changes to the law has complicated this area and is a matter for another blog).
In October 2012, a ’28-day grace period’ for all visa applicants was introduced. Whilst not a concession, it was a tool that allowed UKVI to disregard a very limited period of overstaying by the applicant where the application was submitted 28 days from the expiry of the visa.
In those circumstances, the UKVI caseworker would be allowed to go on and consider the application under the immigration rules.
Where an application to extend or vary leave is made out-of-time, section 3c leave will not apply. The 28-day grace period has therefore been helpful in preventing out-of-time applications from being completely disregarded due to innocent mistake or exceptional occurrence; an approach that was confirmed by the Upper Tribunal in December 2015 in the case of R (on the application of Bhudia) v Secretary of State for the Home Department. Click here for full details of the Upper Tribunal’s decision.
What has changed?
As of 23 November, the 28-day grace period will no longer apply as the government believes it to be inconsistent with their overall message of strict compliance with the UK’s immigration laws.
In a Written Ministerial Statement to announce the Statement of Changes, the Minister for Immigration, Robert Goodwill, summarised the amendments and added:
‘We are also abolishing the ‘28-day grace period’, during which we currently accept out of time applications for a range of routes including work and study, to encourage greater compliance with the Immigration Rules. This will make clear that people must comply with the Rules and make any application for further leave before their current leave expires’.
What does this mean?
Immigration applications to extend or vary leave should always be submitted in advance of the expiry of the visa – that has not changed.
For individuals making an out-of-time application because of exceptional circumstances, the lack of a grace period would be extremely harsh.
Perhaps, for this reason, the government did not abolish the grace period altogether but instead reduced the 28-day period to within 14 days of the expiry of the visa.
As such, UKVI can disregard this limited period of overstaying if the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative.
In addition, where an individual who has had their leave extended by section 3C leave, the 28-day period is to be reduced to 14 days from the expiry of any leave extended by section 3C.
The recent Statement of Changes introduced a number of changes to the Immigration Rules that will apply from 24 November. One such change includes the 28 days’ grace period being reduced to14 days, a measure introduced by the government to encourage compliance with immigrant laws. Regardless, of the grace period, individuals should adhere to the number one immigration rule: do not overstay your visa! Submitting an application to UKVI to extend or vary leave within the validity of the visa can prevent adverse consequences and help to protect an individual’s immigration status. Nevertheless, where there are exceptional reasons for submitting an out-of-time application on or after 24 November 2016, it is recommended that the application is submitted within 14 days from the expiry of the visa as the 28-day grace period will no longer apply.