Married couples - individual wills need a joint approach
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.
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?
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:
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.
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