28 day grace period reduced to 14 days

Last week, on 24 November 2016, many of the changes introduced by the Home Office’s latest Statement of Changes to the Immigration Rules, which was laid before Parliament on 3 November 2016, came into force.

One such change is the abolition of the 28 day grace period within which an application for leave to remain will be accepted, following expiry of a person’s leave. As noted at paragraphs 7.45 and 7.46 of the Government’s Explanatory notes to the Statement of Changes:

“This 28 day period was originally brought in so that people who had made an innocent mistake were not penalised, but retaining it sends a message which is inconsistent with the need to ensure compliance with the United Kingdom’s immigration laws. The 28-day period is therefore to be abolished"

To those that have never had to make an application to the Home Office, it may appear odd that such a provision ever existed in the first place. However there are certain situations, for instance following determination of an appeal, where remaining beyond the expiry of leave is unavoidable. If an application for further leave to remain is made before the expiry of a person’s current leave, they are permitted to remain while the application, and any subsequent appeal, is determined. In such situations, the person’s leave is extended by section 3C of the Immigration Act 1971. However, what happens to 3C leave if the application or appeal is refused?

Leave extended under section 3C ends as soon as an appeal/application is finally determined i.e. when the decision is issued and the deadline for any onward appeal has passed. The 28 day grace  period is vital in such circumstances as without it any further application made to the Home Office from within the UK would be refused on the basis that the person is in the UK in breach of immigration laws. Given the prevalence of such situations, abolishing the grace period completely would be unworkable.

The Home Office have therefore replaced the 28 day grace period with a 14 day grace period. This has been introduced by paragraph 39E of the Immigration Rules which allows an application to be accepted:

  1. within 14 days of leave expiring where there was a good reason beyond the control of the applicant or their representative why the application could not be made in-time;

  2. within 14 days of the date of a decision to refuse an application which was either made in-time or within 14 days;

  3. within 14 days of 3C leave expiring;

  4. within 14 days of the deadline for lodging an administrative review application or appeal against a refusal decision, following an application made in time or within 14 days; or

  5.  within 14 days of any administrative review or appeal being concluded, withdrawn or abandoned or lapsing, following an application made in time or within 14 days.

As such, the grace period has not been abolished completely: merely reduced from 28 to 14 days. Given the often lengthy delays between the date a decision is made and the date it is received, presumably caused by the Home Office’s internal mail system and preference for second class post, timescales will be very tight. A recent decision, made by the Home Office on 11 November 2016, was not received until 21 November 2016, which under the new system would leave the client with only 4 days to make a further application! 

Paragraph 39E will no doubt operate in a similar fashion to the 28 day grace period, albeit the timescale has been halved and applicants who have not been refused and therefore don’t fall within 2-5 above are no longer free to make “an innocent mistake”: they must have a “good reason” beyond their control for applying after expiry. It remains to be seen what the Home Office will consider is a “good reason”.  

One small category of people will actually benefit from the change: those who make an out of time application, which is subsequently refused. Prior to the 24 November 2016 such people would not have been able to benefit from the 28 day grace period. If their application was made after the expiry of their leave, there is no 3C leave while a decision on the application or subsequent appeal is pending. This remains true, however paragraph 39E allows an application to be submitted within 14 days of 3C leave expiring or within 14 days of refusal/conclusion of an appeal. As such, providing you make the underlying application within 14 days of leave expiring, you can benefit from the 14 day discretionary period following refusal or final determination of an appeal against that refusal. This was not the case for those submitting applications within the 28 day grace period.