As a general assumption, the Home Office will not usually accept an application from an overstayer if the application does not have valid leave to remain and the application will normally be rejected as invalid- (although are some expectations in some asylum and human rights applications) for those overstaying.
However, there is a provision whereby the Home Office are permitted to consider an overstayers application as valid under the following circumstances;
Immigration Rules, paragraph 39E
“the application was made within 14 days of the applicant’s leave expiring and 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 the application could not be made in-time.”
Therefore, in essence the above is stating the following:
- their late application must be made within 14 days of their leave expiring, AND
- the Home Office must accept that the person had a good reason beyond their control.
The consequences and implications of overstaying
Therefore, knowingly staying in the UK beyond the expiry date of a visa, or more properly limited leave to enter or remain, is actually a criminal offence.
Working in the UK:
Overstayers are prohibited from working. This prohibition remains in place even after they have applied for a visa extension and is only removed once or if they are granted leave to remain.
Therefore, a sponsored worker, who misses their visa expiry date for a very good reason can lawfully apply to extend their leave within 14 days but will be prohibited from working for their employer until they are granted leave to remain.
If an employee continues to work, they will be committing a criminal offence, and if the employer continues to employ them, they could be liable for a civil penalty of up to £20,000 (or prosecution of the employer in some cases).
Re-entry to the UK
If an individual has overstayed in the UK more than 30 days, the UK Immigration laws automatically impose a mandatory one-year ban on returning to the UK if the person decides to leave and re-apply for another kind of visa.
Settling in the UK
The Home Office reserves the right to penalize individuals who have spent many years of their lives here, but have a few days’ gap between visas, or have even made a mistake of overstaying and not realizing even at the last stages before obtaining ILR. If the individual fails to apply within 14 days of the visa expiring, and without a “good reason”. The Applicant’s only option is then to be faced with an eventual appeal under human rights grounds which might place them on a ten-year route to settlement in addition to the time already spent here.