21 August 2019

Applications from overstayers

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Home office’s new guidance

Following the case of Mamum Ahmed V SSHD the Home Office has now published new guidance for their staff titled “Applications from Overstayers Version 8.0”

This guidance provides more clarity on how to calculate the period of overstaying but is still far from providing certainty on how to calculate lawful residence under the 10 years long residence route.

Unfortunately, since this guidance was published our team at Connaughts has received a huge number of enquiries from migrants who have been advised wrongly into believing that this is some sort of a new application/visa route that has opened for them. Please note that this is only a guidance for Home office case workers and must not be taken as a new category or visa route for overstayers. There is nothing in this guidance that makes the legal position of an overstayer any different than what it was before this guidance was published.

The routes covered under this guidance are

  • all work and study, including the points-based system
  • visitors
  • long residency
  • UK ancestry
  • most discharged Her Majesty’s (HM) forces
  • family (except certain categories including bereaved partners, victims of domestic violence and children – if in doubt whether this applies, seek advice from senior caseworkers)

How to calculate when the period of overstaying begins

According to this guidance the first day of overstaying is the day after the last day of leave to remain (including leave under 3C or 3D) therefore the 1st day of 14 day consideration period under paragraph 39E also starts on the first day after the day the migrant’s leave (Including s3C or s3D) has expired.

Migrant’s status following submission of an application within 14 days of overstaying

The Home Office’s position on an out of time application submitted within 14 days during the consideration period of overstaying (as explained above) is that it does not extend leave to remain. I as a practitioner agree with this position to the extent that this sort of application cannot extend s3C leave but this position still does not address exceptions under Paragraph 39E.

Effect of this guidance on 10 years lawful residence:

Based on the above SSHD’s position therefore is, an applicant without of time application is without valid leave at the point they submit their application and continues to be an overstayer from the point their leave expired and throughout the period their application is pending.

As the applicant has no leave during the period their application is pending, they do not qualify for leave to remain under 276B (10 years lawful long residence) even if the refusal decision on this out of time application is taken after applicant finishes his/her 10 years residence in the UK. In addition, they will have no permission to work in the UK.

At the moment this position from the SSHD is backed up by the Court of Appeal case of Mamum Ahmed V SSHD. I have already written a short article previously on this case and my position remains the same that Mamun Ahmed is decided per incuriam.

In order for an application for ILR under paragraph 276B to be granted an applicant must meet all five requirements: (1) 10-year continuous lawful residence; (2) good character; (3) lack of general grounds of refusal; (4) knowledge of English language and life in the UK; and (5) no breach of immigration laws except what is subject to paragraph 39E.

Therefore, the only issue in this appeal is about the status of paragraph 276B(v): whether it is an exception to para 276B(1)(a) or a freestanding requirement? The SSHD’s case is that sub-paragraph (v) is an exception to sub-paragraph (i)(a). It is not a freestanding requirement or an addition to sub-paragraph (i)(a). It is rather a relaxation / compromise to sub-paragraph (i)(a). Of course, our position is that it is an exception to para 276B(1)(a).

Keep an eye on our further posts on this issue and as soon as we have any update from the Court of Appeal on our pending cases on the same point of law, we will update you.

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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