After an applicant has successfully entered the UK on a ‘Leave to Enter’ basis, and has completed the term of their first visa, they will most likely be eligible to apply for ‘Leave to Remain’. This is essentially an extension of the visa, demonstrating to the Home Office that the applicant continues to meet the requirements, and that they have a right to remain in the UK on the basis of their visa.
In most cases, such as with Spouse visas, the earliest an application can be submitted is 28 days before the visa expiry. The logic behind this being that the Home Office want to see that the applicant has met the requirements for the full term of the visa; an early application would not fully demonstrate this. However, as these applications require a substantial amount of documentation, many people are only able to apply close to the deadline. For this reason, the date of the application is important, as it can vary depending on how the application is sent.
If the deadline is missed, the applicant risks becoming an overstayer. Before 24 November 2016 a so-called “grace period of 28 days” from the expiry date of the visa would be permitted. This would allow migrants to renew their visa or make a further application, without being classed as an overstayer. This has since been abolished, and the recent Home Office guidance on the good character requirement published on the 14-01-2019 reiterates this. Previous periods of overstaying will now only be disregarded in some very specific scenarios.
As per paragraph 39E of the Immigration Rules, an overstaying of 14 days will be accepted “if the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative” to make the application before the deadline.
The relevant date of the application is stipulated in Part 34G of the Immigration Rules as follows:
34G. For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E is made is:
(1) where the paper application form is sent by post by Royal Mail, whether or not accompanied by a fee waiver request form, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
(2) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; or
(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for leave to remain is submitted within 10 days of the receipt of the decision on the fee waiver application.
Previously, all applications were made by post. In recent years, in particular during this last year, the Home Office have been updating their systems to all work online. The application can now be sent online, and it means there is no longer confusion on the application date (which is also stipulated on the completed application form).
If an application has been submitted close to, or on the expiry date, this does not mean that the applicant becomes an overstayer. The Home Office can take a long time to issue a decision, sometimes taking more than 6 months, and an applicant cannot be penalised by this.
When awaiting a decision, an applicant is protected by part 3C of the Immigration Rules as follows:
Continuation of leave pending variation decision
(1) This section applies if:
(a) A person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) The application for variation is made before the leave expires, and
(c) The leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when:
(a) The application for variation is neither decided nor withdrawn,
Moreover, according to the Home Office guidance on Leave extended by section 3C version 9.0, “a person who has section 3C leave remains subject to the conditions attached to their extant leave unless the conditions of their leave are varied by the Secretary of State”.
This means that an applicant awaiting a decision can still continue to reside in the UK, in accordance with the terms of their previous visa.