The ability to make an immigration application as an overstayer from within the United Kingdom has formally been in place for family members since July 2012 and for the majority of other visa applicants since October 2012. These provisions in the Immigration Rules confirm that to be eligible to apply, an applicant must have leave to remain in the United Kingdom at the time of making the application, but also stipulate that any period of overstaying of 28 days or less will be disregarded.

In practice, this allows an applicant to make an application as an overstayer within a maximum period of 28 days of visa expiry without fear of that application being refused simply by virtue of the overstay, irrespective of when the decision will be made on his or her application. This position was recently reinforced by the Upper Tribunal in the reported judicial review decision of R (oao Bhudia) v SSHD.(1)

The wording of the applicable provision does not specifically refer to the date of the immigration application. It refers only to a period of overstay being disregarded. In the above case, the Home Office tried to argue that an application can be refused where an applicant has overstayed for more than 28 days, irrespective of whether the application was made within the 28-day overstay period. Thankfully, common sense prevailed and the tribunal confirmed that its preferred interpretation is as follows:

"the requirement enshrined in this subparagraph is satisfied provided that the application is made within a period of 28 days beginning on the date immediately following the final day of the applicant's lawful sojourn in the United Kingdom."

The Upper Tribunal's use of the word 'sojourn' and the absence of any reference to the visa expiry date in the 28-day overstay concession allows applicants to continue to rely on the assertion that the start date of any period of overstay will commence only after any leave to remain under Section 3C of the Immigration Act 1971 has expired. The Upper Tribunal could have provided additional clarification on this point, but since the applicant in Bhudia applied within 28 days of the expiry date of the visa, it was not an issue to be determined.

This particular appeal concerned a refusal of a spouse visa extension, but the principle should apply to any applicant submitting an application within 28 days of overstaying in the United Kingdom. Applicants should therefore feel confident applying as overstayers, knowing that their applications cannot be refused solely on the grounds of overstaying, provided that their application is made within the 28-day period.

For further information on this topic please contact Ben Sheldrick at Magrath LLP by telephone (+44 20 7495 3003) or email (ben.sheldrick@magrath.co.uk). The Magrath LLP website can be accessed at www.magrath.co.uk.

Endnotes

(1) Paras 284(iv) and (ix) IJR [2016] UKUT 00025 (IAC).

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