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Curious Incident of the Hidden Immigration Rule - Overstaying Rules Become Stricter

02 February 2017

In a "Statement of Changes to the Immigration Rules" published in November last year the Home Office - as per the prescribed method - created a new, stricter immigration rule about overstaying.

Unfortunate people such as immigration lawyers have to grapple with a large body of such rules, which go on for hundreds of pages and are published on the Home Office website and are updated - and quite frequently - "live". (Some immigration lawyers gave up buying books on immigration law a long time ago: in some cases they are out of date even when they are printed.)

The keen student of English law is aware of a general and important principle: that the law should be accessible. In the case of the immigration rules this principle is probably met, albeit the level of complexity is often hard to deal with.

The Home Office has, to assist the reader, created an index for the immigration rules, which comes at the beginning, and which enables them to locate the part of the rules that they are looking for. With a bit of practice, once one gets used to the way the program works, one can usually find what one wants.

But in this case something went wrong. The new immigration rule has the title "Exceptions for overstayers" but, curiously, this title does not appear in the index. Probably this is an error by a hard-pressed Home Office official rather than a deliberate ploy, but the result is confusing.

Readers who are desperate to find the new rule will be able to find it on: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-1-leave-to-enter-or-stay-in-the-uk if they click "Exceptions for overstayers".

Anyway, be this as it may, the new rule creates a significant change in the law. Previously, if a migrant had overstayed (ie they had remained in the UK beyond the period of their immigration leave) by up to 28 calendar days and they made a new visa application to the Home Office then the Home Office would accept and consider the application. If the application was a good one then leave would be granted and the period of overstaying would be disregarded and forgiven. This was an overarching rule that applied generally to migrants in different situations.

Now the rule has become both more restrictive and more complicated. The 28 calendar period has been reduced to 14 calendar days but the way that this period operates is now different. If a migrant’s leave has expired and they then try and submit a new visa application out of time they may be in trouble. Such an application must in any case be made within 14 calendar days of visa expiry (otherwise it will presumably be rejected) and the migrant must provide a "good reason" for the lateness. Experience and intuition suggest that reasons such as "I forgot" or "I was too busy" will not suffice.

And the new rule also decrees that a migrant who has made an application to the Home Office which has been considered and refused has to act within 14 calendar days, and here the rule is quite complex. They can either submit a new application or submit an application for appeal or administrative review (if there is a right to either of those). If they do submit an appeal or administrative review but they are ultimately unsuccessful or the process otherwise terminates then the 14-day rule comes back and again they have to act within that period.

This is only a brief summary of the rule and anybody who is, or fears they might become, subject to it should seek good legal advice.

This new rule is of course part of the architecture of the Home Office’s general policy of tightening up immigration rules, policies and practices. And this particular case constitutes a very good example of the dangers migrants face with changes in the law. It is highly presumable that some migrants will have fallen foul of the new rule because they were unaware of it, and in immigration law - as in other areas - ignorance of the law is not an effective excuse. This is another reason why good legal advice is indispensable.




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