28 Days Grace Period

[28daysgrace]

Dear all,

I think recently there has been a few posts regarding people's confusion over the 28 days grace period so I thought this in its own right deserves a topic of its own.

On one hand we have this : (Thanks to Zimba88)

From HO guide, page 9: https://www.gov.uk/government/uploads/s ... _clean.pdf

Migrant’s status following submission of an application within 28 days of overstaying
The submission of an application within the 28 day period of overstaying does not mean the migrant’s previous leave is either re-instated or extended.Therefore an applicant without valid leave at the point they submit their application 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 have no permission to work in the UK

And on the other hand we have common sense !

What's the point of 28 days grace period when all visas would take longer than 28 days to process ?

So if you post your application lets say 10 days after your leave's expiry date and it takes 60 days for HO to process it, does that mean that you have overstayed for 70 days !?

Also as far as I know overstaying for longer than 90 days can lead to life time ban from the UK. SO technically if you post within the 28 days grace period (after expiry of your current leave) and HO processes your visa in 3 months (which is fairly common) you should face a life long ban from the UK (?) while your visa let's say has also been approved (?) Really !?

(If that's the case, this has to be yet the most unfair and ridiculous legislation HO has put together ! Obviously they can take their time for processing visas as much as they want at the price of applicant's overstaying then and it's not applicant's fault that HO cannot process applications quicker)

So technically we should forget the 28 days grace period altogether, right ? Cause even if your extension is approved you have still overstayed a fairly long time.

At least no benefit to our type of visa (Tier 1 Entrepreneur) which can't be processed with same day service (?)

[zimba]

What's the point of 28 days grace period when all visas would take longer than 28 days to process ?

To prevent a long over stayer to apply for fresh applications. If you apply before the expiry of your visa (as you are suppose to), your leave will be extended under section 3C.

So if you post your application lets say 10 days after your leave's expiry date and it takes 60 days for HO to process it, does that mean that you have overstayed for 70 days !?

Yes because you are suppose to apply before your visa expires. However if you are successful in your application the period will be disregarded for ILR.

Also as far as I know overstaying for longer than 90 days can lead to life time ban from the UK. SO technically if you post within the 28 days grace period (after expiry of your current leave) and HO processes your visa in 3 months (which is fairly common) you should face a life long ban from the UK (?) while your visa let's say has also been approved (?) Really !?

You probably will not get a ban if you overstayed while your application was being processed

So technically we should forget the 28 days grace period altogether, right ? Cause even if your extension is approved you have still overstayed a fairly long time.

No, such period of overstaying before a successful application is disregarded for your ILR

[28daysgrace]

To prevent a long over stayer to apply for fresh applications. If you apply before the expiry of your visa (as you are suppose to), your leave will be extended under section 3C.

So if one applies after expiry of his/her leave but within 28 days and his/her visa is refused he should technically get removed from the UK as he is then an over stayer without section 3C ?

Would he/she be given a chance for AR ?

After all, the AR will take another couple of months to process as well, so technically applicant will keep over staying while he is going through his most basic legal right which is AR (?)

Yes because you are suppose to apply before your visa expires. However if you are successful in your application the period will be disregarded for ILR.

But this would be contradictory to :

Migrant’s status following submission of an application within 28 days of overstaying:

The submission of an application within the 28 day period of overstaying does not mean the migrant’s previous leave is either re-instated or extended.Therefore an applicant without valid leave at the point they submit their application 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 have no permission to work in the UK

This clearly says that when you have applied within the 28 days grace period you keep being an overstayer while your application is being processed and with this wording it seems to be regardless of the outcome of your application. I think what you say makes perfect sense and it is how things should be really, but I think it contradicts this paragraph.

I wonder if there's anything else in law to complete the picture here (?)

[sm12]

http://spmmer.co. ... tion-case/
Recent case law about 28 days grace period.

[sm12]

Not sure why link didn't post .
Anyway HO tried to argue that they can reject someone who applied within 28 days once the 28 days had passed but upper tribunal rejected this.

[28daysgrace]

Thanks for sharing the link SM12.

But on what basis does the upper tribunal rejected this ?

Does anyone know a specific section of immigration law which states that if you have posted within the 28 days grace period and your application is under processing, processing time will not count towards overstaying as long as your application is successful ?

[zimba]

So if one applies after expiry of his/her leave but within 28 days and his/her visa is refused he should technically get removed from the UK as he is then an over stayer without section 3C ?
Would he/she be given a chance for AR ?
After all, the AR will take another couple of months to process as well, so technically applicant will keep over staying while he is going through his most basic legal right which is AR (?)

No. You will only be removed when you have to pending application. You will get an AR after a refusal but you remain an over stayer.

But this would be contradictory to

Migrant’s status following submission of an application within 28 days of overstaying ....

This clearly says that when you have applied within the 28 days grace period you keep being an overstayer while your application is being processed and with this wording it seems to be regardless of the outcome of your application. I think what you say makes perfect sense and it is how things should be really, but I think it contradicts this paragraph.

Read The ILR continuous period calculation guide: https://www.gov.uk/government/uploads/s ... ds-v13.pdf

On page 27 says:

For ILR you must disregard any period spent in the consideration of applications for leave to remain where the application was made no more than 28 days after the expiry of leave

[JamesBlack]

Let's suppose
If we apply tier1 entrepreneur extension let's say 27th day after visa expiry and if the application stays pending or AR decision is pending can we the apply for SET LR at PEO same day ,28 days before 10 years actually completing.

[28daysgrace]

For ILR you must disregard any period spent in the consideration of applications for leave to remain where the application was made no more than 28 days after the expiry of leave

[/quote]

Thanks for sharing this. Very useful indeed.

[sm12]

UK Immigration Policy: 28 Day Grace Period for Overstayers
UK Immigration Policy: 28 Day Grace Period for Overstayers

Remove the spaces to view
xxxxxxxxxxxxxxxxxxxxxxxxx

[sm12]

Here's the full case

Tribunal decisions

https://tribunalsdecisions.service.gov. ... 16-ukut-25

[LIZANAZ]

Hi dear All,

My visa was expired 18 March 2016. I have applied on time & extension refused in 10 May 2016. Now, I submit AR in 25 May 2016 that is still pending till today.

My question is: is my 28 days grace period start from my extension refused date (10 May 2016) or will it start after AR decision, if refused AR?

Thanks

[sm12]

Lizanaz

It's taken from conclusion of ar.

[n8net]

just want to make sure, if you make an application within the 28 days, the section 3c has already ended ? is that correct ?


so, while that application is pending, can it be varied ?

the reason I am asking is because of this.

I hv a friend with an unusual immigration case and hope some one can advice.

1) applied for Tier 4 extension in country which was refused citing already been 5 years.
2) applied for Admin, as the calculation of 5 years was wrong.
3) AR refused, was asked to file another application within 28 days
4) applied for Tier 2 with a sponsor within 28 days
5) Now he understands the sponsor license is revoked.
6) How office yet to make a decision on his Tier 2 - although it will be declined soon.

Given this, I think his current leave is extended by section 3c. But, when his Tier 2 is declined, he becomes over stayer from the date his 28 days elapsed ?

what are his options now ?

He becomes eligible for 10-year ILR in Sept. 2017, so do not want to break his continuous residency in the 9th year, so desperate for help.

a) can he vary his application with a different sponsor before HO makes a decision with the license-revoked sponsor ?

b) will HO ask him to fie another application, given he has already used an AR before ? (I understand you are only allowed one AR ? any1 with similar exp.?)

thanks

[zimba]

If he applied for Tier 2 visa within 28 days and had no valid leave to remain, he is technically considered an over stayer. Section 3C cannot apply as he did not have a valid leave to remain to be extended in the first place (only in-time applications are extended by section 3C) I am not sure if someone can vary an out-of-time application.
If his application is refused now he will not be able apply again in the UK any more and his 10 year continuous period will be broken.

[n8net]

thanks Zimba.

so when he was given the decision on the AR of the Tier 4 application (his last grant of leave), his section 3c ended. right ?

so, any applications (HO asked him to apply within 28days) are out-of-time applications?

so, when this out of time application is refused for no fault of his own, he has not no further courses of action ? surely this is not right ? no AR, appeals JR, nothing...so option, but to leave the country, although in 14 months he becomes eligible for 10-year rule ? seems very harsh to me....

also, since he is overstayer now, he cannot work ?

[zimba]

so when he was given the decision on the AR of the Tier 4 application (his last grant of leave), his section 3c ended. right ?

Yes

so, any applications (HO asked him to apply within 28days) are out-of-time applications?

Yes as you have no leave to remain any more.

so, when this out of time application is refused for no fault of his own, he has not no further courses of action ? surely this is not right ? no AR, appeals JR, nothing...so option, but to leave the country, although in 14 months he becomes eligible for 10-year rule ? seems very harsh to me....

He gets AR but again he remains an over stayer unless his application is approved. He can apply for JR if he wants but again he will be an over stayer with a broken continuous period unless JR overturns the HO initial decision. Yes, it is harsh as the appeal process does not exist any more.

also, since he is overstayer now, he cannot work ?

Correct. See what I posted above

[n8net]

thanks again Zimaba.

if you have time, could you please briefly explain how the application review system currently works please.

as I understand it,

you make an application and you are refused, you only have AR - for first tribunal ?
no upper tribunal anymore ?

if even AR is refused, you can make multiple applications, until such time your initial visa has not expired (classified as in-time applications)

if you have no leave, you can still make ONE and ONLY application, classified as out-of-time application.

all in-time and out-time will have their AR, regardless of whether you had AR or not in previous applications ?

is that right ?

and when exactly you go for JR ? and what happens after that?

[zimba]

you make an application and you are refused, you only have AR - for first tribunal ?
no upper tribunal anymore ?

No appeal is allowed any more. Immigration Act 2014 removed all the rights to appeal HO decisions for migrants (except for appeals based on the human rights grounds)

if even AR is refused, you can make multiple applications, until such time your initial visa has not expired (classified as in-time applications)

Yes

if you have no leave, you can still make ONE and ONLY application, classified as out-of-time application.

Yes, Usually that's what majority can manage anyway

all in-time and out-time will have their AR, regardless of whether you had AR or not in previous applications ?

Yes

and when exactly you go for JR ? and what happens after that?

After you exhaust all your options (Usually when AR is refused and you cannot make new application)
JR is a complex and expensive process and outside the scope of immigration law

[n8net]

thanks Zimba,

also you are given 14 days to file an AR, and 28 days to file another application which starts from the date AR is refused ?

[zimba]

thanks Zimba,

also you are given 14 days to file an AR, and 28 days to file another application which starts from the date AR is refused ?

You get 14 days to file for AR in any situation. You will get 28 days to apply for a new application from the date your section 3C ends. If you had no section 3C when you applied for a new application, you get no other chance for an in country application in case of a refusal

[n8net]

but the letters my friends was given after the refusal of the AR, mentions he has 14 days to tell HO about any other reason to stay in the UK.

thought it should have been 28 days ?

[zimba]

but the letters my friends was given after the refusal of the AR, mentions he has 14 days to tell HO about any other reason to stay in the UK.

thought it should have been 28 days ?

Maybe because your friend exhausted all his options and now has no reason to be in the UK ????
People get confused and think this 28 days is a magic number. You can ONLY apply for a fresh application if you overstayed for 28 days or less. That is how you get number 28 !!!
The rules are clear. You get max of 28 days of overstaying to apply for a new application otherwise you fall for automatic refusal.

[n8net]

my point here is, given he has 28 days to make a fresh application after his section 3c ended (when his AR of an in-time application is decided), how could HO say he has only 14 days to tell them about any reason or leave UK.

isn't this wrong ? or am I missing something...

[zimba]

my point here is, given he has 28 days to make a fresh application after his section 3c ended (when his AR of an in-time application is decided), how could HO say he has only 14 days to tell them about any reason or leave UK.

isn't this wrong ? or am I missing something...

Are you sure he had section 3C ?? Did he apply before his visa expired ?? If yes, then he get 28 days of overstaying to file for another application. There is no 14 days