02 February 2018 Update:
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The Home Office’s inexorable march to ensure every aspect of immigration law is as complicated as possible continues, despite various members of the judiciary commenting in the strongest terms that such complexity benefits nobody.
The latest aspect of the rules to be reviewed is regarding applications from overstayers. In years gone by, overstaying, when someone remains beyond the time limited by their leave without making an application to extend or vary that leave before it expires, was dealt with by the application of discretion by a decision maker. Then in 2012 the rules were amended to specify, as a ground of refusal for the majority of application types, that an applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less would be disregarded.
A person technically breaches the ‘immigration laws’ as soon as their leave expires, unless they have made an in-time application to the Home Office, which by virtue of section 3C of the Immigration Act 1971, extends that leave past its ostensible expiry date, until a further decision is made on that application. Section 3C can also operate in some cases to extend leave during any appeal or application for administrative review.
The law was relatively clear, albeit it removed the discretion previously available. If an individual did not make an application before their leave expired, they had 28 days in which to get something in, as despite being an overstayer, if their application was made before that deadline, it would not automatically lead to refusal.
Equally if an individual had made an in-time application and had their leave therefore extended by section 3C, perhaps also throughout an appeals process, they could, if that process did not resolve the matter for them, get one further attempt to apply. This is because the overstaying period would only commence once the previous application and any further subsequent processes had been expended.
Of course as befits our horrible and confusing system the fact that the Immigration Rules permitted a period of overstaying to be disregarded, did not mean that the individual concerned was somehow not an overstayer. They were and would indeed remain so unless and until they were granted some kind of further leave.
This had the nasty effect of meaning they would need to cease working and exposing them to all kinds of consequences in law of being an overstayer. They would also, by virtue of Section 24(1) (b)(i) of the Immigration Act 1971, be committing a criminal offence.
None of this was ever really addressed by the Home Office. We had a bizarre situation; an individual could legitimately apply as an overstayer, and expect leave to be granted if they met the rules, but they would be committing an offence by overstaying and another offence if they continued to work meantime (not to mention exposing their employer to £20k fines).
Given decision time frames frequently run into many months, a family breadwinner who missed their visa expiry date would be expected to suspend work and survive somehow, whilst waiting for a decision which in many cases would be positive (and could be predicted to be positive by virtue of meeting the relevant rules). An unnecessarily punitive and distressing system.
In my view this was crying out to be reconciled. You cannot permit a discretion in the rules, but yet leave other nasty consequences for overstayers in place.
Now we have changes, brought about by the new Statement of Changes HC667, published on 3 November 2016.
So, hope against hope, do these changes rationalise and improve the law? In my view no, unsurprisingly they serve to move the goalposts again, and make things more complex, albeit there is a small degree of liberalisation.
The amendment to the rules removes the provisions to disregard 28 days of overstaying and instead inserts a general provision concerning applications for overstayers. The rule states (that an exception for overstayers will be granted where):
(1) 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; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Immediately a number of aspects are striking. The first is that for a ‘late’ application, the time to apply has been constricted to 14 days, but more importantly is also now subject to an additional proviso that there was ‘good reason’ why the application could not be made in time. I look forward to years of judicial reviews on that point. ‘Good reason’ is defined in guidance, but not very comprehensively. I expect that guidance will come under the scrutiny of a court at some point. Previously you did not need to give a reason, so long as it was within the time period- now we have an unnecessary additional factor. Obviously one person's good reason is another's poor excuse. If a much loved family pet was deathly ill, young children distressed as a result, and therefore the form not sent away because an urgent trip to the vet was needed, will that be enough? The guidance suggests not. It must not be 'difficulties that could realistically have been surmounted'.
What is also interesting is that there is seemingly potential to have two bites of the cherry. Previously you would likely only be able to get one application into the Home Office as an overstayer, since as the period of overstaying continued to tick away, by the time that application was refused, you would then be significantly outside the 28 day period.
The new rules permit that an application can be made as an overstayer (without good reason) if you had before that made an in-time application. Significantly also that you can apply if you had previously made an application as an overstayer which was late for good reason. This is a change. It means in effect, in some cases, an applicant could have two bites of the cherry. Despite the period of time being ostensibly constricted, it may in fact be extended in some cases.
A scenario, as an example, could be that an applicant applies late, after the expiry of their leave, for good reason (their dog ate their passport). This application is considered for a time and then refused. The individual has now overstayed for 3 months. Under the old system a further application could not be made within the rules. Under the new system, because the first application was accepted for good reason late, then the individual can make a subsequent application within 14 days of the refusal. Therefore as an overstayer they get two bites of the cherry when previously they would get one. The second application may in fact be made after many months of overstaying.
This is on some levels a sensible amendment, yet it is difficult to understand why the change overall was required. The rule that had been in place since 2012 was now well understood and the changes to the time periods will serve to confuse.
It would have been better, in my view, that the Home Office addressed the dichotomy of permitting individuals to apply despite their leave running out, but remaining subject to the various laws engaging punitive sanctions against overstayers. Indeed Part 9 of the Immigration Rules still contains a mandatory ground of refusal for entry clearance applications if an applicant has overstayed in the UK for greater than 90 days. If that has occurred the applicant effectively faces a year’s ban from re-entering the UK.
This means that if an application made within the UK by an overstayer is refused and that consideration has taken longer than 90 days, if the individual then decides to leave the UK and apply for another visa type (as is often required by the rules), they could then potentially face a one year ban, despite the immigration rules legitimising their conduct in applying and remaining in the UK whilst the application was considered.
A ridiculous situation and only one of many examples of why our immigration law system is damaged almost beyond repair.
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