Overstaying and overstayers

An overstayer is somebody who has remained in the UK beyond the period of their visa. A person, for example, comes to the UK on a six-month visitor visa but – for whatever reasons – they remain in the UK after the six-month period.

Not everybody knows this (and probably not everybody needs to) but overstaying is a criminal offence. However, prosecutions for overstaying are very rare; the authorities normally try to deal with overstayers by removing them from the UK, not prosecuting them.

Under previous rules the Home Office was relatively lenient with overstayers. Those who had overstayed by up to 28 days could make a new visa application to the Home Office and, if the application was valid, it would be accepted and processed and, it is was granted, then the overstayer would have their legal status restored.

This scheme sometimes left overstayers in a curious legal limbo land, where they were on the wrong side of the criminal law (and therefore potentially liable to prosecution) but on the right side of the Home Office, who might eventually save and redeem them.

But, as readers may already know, the Home Office has recently tightened up the rules on overstaying. There is still some flexibility for overstayers, but less then previously. The situation now is that many who have overstayed, even inadvertently and even for just a day or two, will find that any application they make to the Home Office will be automatically refused, without any substantial consideration, because they have breached the overstaying rule.

This is going to put many people in a difficult situation. They will face the practical choice of either remaining as overstayers in the UK, and thus being liable to arrest, detention and enforced removal from the UK – not a highly recommended lifestyle – or travelling back home and making a new visa application to return to the UK.

Overstaying and human rights

There is the possibility, in some cases, that an overstayer can be rescued from their situation by human rights law. Human rights law is different from and separate from the British Immigration Rules, and a migrant who has fallen fatally foul of Immigration Rules may be able to rely on human rights to regularise their immigration status.

In practice and reality, the only kind of migrants who are likely to be able to avail themselves of this are those who either have lived as overstayers for many years and who have put down deep roots in the UK or those who have formed close family relationships in the UK with a British citizen or someone who has settlement status – and of course in many cases these two categories will coincide.

Such migrants may be able to rely on Article 8 of the European Convention on Human Rights, which provides a qualified right to family and private life.

But the outlook in this respect for those who are seeking to rely on family relationships is not as strong as it used to be. Various decisions of the courts in the last few years (both with the European Court of Human Rights and the British courts) have gradually tightened up the position for those who are overstayers and whose immigration situation is, in the dreaded legal word, “precarious”.

Recently, the UK Supreme Court (the highest court in the UK) passed just such a judgement. It held that the Home Office’s Immigration Rules about overstaying and family visa applications, which are somewhat restrictive, are generally fair and proportionate, and are generally in tune with previous decisions of the European Court of Human Rights.

It did, however, uphold the principle that in certain cases, where the facts are very compelling, an applicant could potentially succeed in a human rights case even if they were an overstayer, and thus obtain legal status in that way.

Our conclusion

The recent Supreme Court decision shows that there is a high level of unanimity between the European Court of Human Rights and the British courts about overstaying and human rights. Home Office decision-makers are ultimately bound by the decisions of the courts – and if they do not follow the decisions of their courts in their decision-making then this can be challenged at appeal.

But the landscape provided by the courts is now relatively harsh. If you are an overstayer and you want to fight your case you need to instruct good lawyers.

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