Was the 28-day grace period for overstaying really inconsistent with the need to comply with the UK’s immigration laws?

The latest statement of changes to the immigration rules, which will primarily take effect from 24 November 2016,  brings about the abolition of the ‘28-day period’, which rather graciously allowed many applicants to apply for further leave to remain after their current leave had expired.

The standard expectation has always been, and still is, to submit applications for further leave to remain before an applicant’s current UK visa expires. The 28-day period was introduced so that applicants, who had made an innocent mistake or were restricted due to circumstances beyond their control, were not penalised. As such, a period of overstaying for 28 days or less in itself was not considered a ground for refusal for those applicants.

In a review of this protocol, the recent statement of changes has proclaimed this to be inconsistent with the UK’s immigration laws and accordingly abolished the 28-day period. Instead, the revised practice will be not to refuse an ‘out-of-time’ application, which is submitted within 14 days of the expiry of a UK visa and where the Secretary of State considers that there is ‘good reason beyond the control of the applicant or the representative’, set out in or with the application, why an in-time application could not be made.

It is likely that each application will be considered on a case-by-case basis to see whether the Secretary of State will exercise discretion for an out-of-time application, on the basis of the specific circumstances presented in the application. Alternatively, there may be published guidance setting out what will be deemed a ‘good reason’ by the Secretary of State when the changes come into effect.

Why abolish or limit the grace period?

There is considerable debate as to whether the 28-day period should have been abolished.  On the one hand, it is very rare that an applicant will actively delay submitting an application ‘in-time’ unless they do indeed have a good reason beyond their control.  As such, why not just leave the 28-day period protocol in place.  Why limit this to 14 days?

On the other hand, and rather controversially, if the 28-day period is inconsistent with the UK’s immigration laws, why allow any period of overstaying at all? 

Now many will gulp at this prospect and no doubt be overwhelmingly in favour of the revised ‘14-day period with good reason’ practice, as opposed to no grace period at all. Surely, 14 days is better than nothing!

This will particularly resonate with those who remain in the UK with leave extended by section 3C of the Immigration Act 1971, as they find that their permission to continue to stay in the UK will be reduced to 14 days from the expiry of any 3C leave. The purpose of section 3C leave is to protect a person who makes an in-time application to extend their leave, from becoming an illegal overstayer whilst awaiting a decision on their application, or while any appeal or administrative review they are entitled to is pending.

Now, without this new 14-day arrangement, the abolition of the 28-day period or potentially any period of grace leave, would mean any further applications made by 3C leave individuals will be deemed to be out of time. Accordingly, this demonstrates that there is a real need to have some type of grace period in place as this is paramount to protect individuals who are entitled to remain in the UK, either as a result of circumstances beyond their control, or whilst an application is in process; or whilst an administrative review or appeal is under consideration. A period of overstaying therefore is incorporated in UK immigration law to protect certain law abiding individuals, so how can this be seen to be inconsistent with UK immigration law?

A genuine need for leniency and realistic timeframes

It is vitally important to ensure there is an extent of leniency in place to protect those who are entitled to be in the UK as a direct result of their complying with the UK’s immigration laws. The specified period should ensure a realistic timeframe within which the applicant, their representative, (or even in the case of sponsored workers), their Sponsor can review the situation at hand and administer necessary action.

Take for example these realistic scenarios:

1. Company A’s employees are all TUPE’d across to Company B subsequent to an acquisition. Company A omits to report the TUPE and also inadvertently allows its Sponsor Licence to lapse. The Home Office proceeds to curtail the leave of Company A’s Tier 2 sponsored workers.
   
   Company A decides to take legal advice to rectify the situation. The lawyers instructed submit representations to the Home Office requesting a reversal of the curtailment. Whilst the Home Office is considering the representations, one of the sponsored worker’s UK visa expires and the clock now starts ticking. The Home Office finally decides to reverse the curtailment but is now day 24 of the 28-day period. 
   
   Under the new ‘14-day period with good reason’ practice, this Tier 2 sponsored worker would most likely already be deemed an illegal overstayer and have no basis to remain in the UK. Would the Home Office exercise any discretion in these circumstances? Would the Home Office even consider the above scenario a good enough reason beyond the control of the applicant or representative?    
   
   ...or indeed a simpler scenario….
    
2. An applicant receives a Home Office refusal decision and finds they no longer have valid leave in the UK.  It is undoubtedly the case that they will need the appropriate time and funds to obtain legal advice in order to understand their immigration position and pursue viable options. These aspects can logically eat into the 14 days, which imposes excessive pressure both on applicants and representatives alike.

This revised timeframe from 28 to 14 days simply seems to be presented to us as a gesture, but in all honesty serves no real purpose to anyone.  What ‘good reason’ is there to this approach of limiting overstaying? No good reason really it seems.

Further information

Should you have any questions about the issues raised in this blog post please contact Rizwana Quazi or a member of our immigration team.