Good News For Overstayers??? But If They Act Fast!

[starman]

towards the bottom of here:
http://www.theyworkforyou.com/debates/? ... 183.0&s=ID
you get this a lot with the home office, the top level of publicity and spin rarely matches the actual rules, or in this case what liam byrne calls 'custom and practice'

[louisedanielle]

Hello, we are two years overstayer with 1 year old daughter. Both mother and father are overstayers. Please help us to decide and seeking for your good advice.

[vinny]

y'all DO know that you can still apply for leave to remain if you've overstayed for less than 6 months, right??

Appears to be for senior care workers only.

See also 26.17 Refusal where the applicant has previously breached the UK's immigration laws [Updated 15 May 2008].

[jei2]

y'all DO know that you can still apply for leave to remain if you've overstayed for less than 6 months, right??

Appears to be for senior care workers only.

I agree. This is a poorly publicised and administered transitional protection for care workers. It certainly doesn't mean protection for the common or garden variety overstayer.

[carlabeach]

everyone i know who is back home been refuse them visa and they left voluntary.
this is not an amnesty, is really hard to get a clear entrance, better try inside the uk to see what you can do for your case

[yankeegirl]

everyone i know who is back home been refuse them visa and they left voluntary.

Did they leave before March 17?

[jei2]

everyone i know who is back home been refuse them visa and they left voluntary.

Did they leave before March 17?

And what were the reasons given for refusing them?

Don't forget that as well as meeting the concessionary period (17 Mrach 2008 - 1 October 2008) they must not have frustrated the rules previously.

And of course they must meet the relevant criteria for re-entry.

[William Blake]

[/quote] It certainly doesn't mean protection for the common or garden variety overstayer.[/quote]

Any good in stew? What do they taste like? I want to grow some.

[carlabeach]

all the cases been refuse since november. all this cases been in diferent countrys, all apliying for settlement visas.

[Frontier Mole]

You are quoting "since November" (2007) and stating the new concessions do not work. Well that is hardly surprising as the earliest date of return for the concession to be considered would be 17th March 2008.

The "amnesty" word. (Shiver...)
It is not an amnesty, it is a time limited concession given to returning overstayers. Those that take the opportunity to return home before 1st October 2008 will not be subject to the automatic mandatory refusal (ban).

The other issue pointed to earlier in the posting chain is that you still have to meet the immigration rules. Spouse visa will still require the same accommodation and maintenance, still require the sponsor not to be on benefits etc etc.

The concession is not that you go home and the UK rewards you with an automatic entry. The concession is you do not get an automatic ban on application for entry because you were an overstayer.

[khan85]

quick question Frontier Mole!!!

if your an overstayer married to UK citizen, and hold no passport, but want to go back to your home country, and are leaving at your own expense..

whats the procedure?
and will there be a ban if we apply for spouse viza?

[Frontier Mole]

It varies country to country of origin. So take this advice as very general.

If you can get a passport from your embassy or high commission, some will issue, some will not depending on the individual circumstances.

If you can not get a passport ask about an emergency travel document known as an ETD. This document lets you leave the country with some proof of identity that is valid at check in and when you land in your own country. Again the valid time scale of these docs’s varies. Some countries will only issue once you have a valid return ticket - you have to find out what the process is for your country.

Your embassy etc will freely give you the run down on what they want / require etc this is a daily task for them and they know the score.

Once you have passport / ETD and travel ticket you are ready for the big (sad) day of return.

What happens at the airport?

Three possible scenarios.

1 You check in, wander off down the terminal and get on the plane. No one gives you a second glance.

2 You check in and ground staff points you out to immigration because of your ETD. Immigration will take your details, perhaps do a single finger print and enter some info onto their records. Immigration will / may issue with a bit of paper - IS151A that confirms you are an overstayer. It is meaningless in the context of returning to the UK due to the current concession period for returning overstayers.

3 You check in, ground staff smile at you and think - yet another of the thousands returning on nice new passport / ETD with no entry stamps..... You - yes YOU - go and search out immigration and declare yourself. See 2 above. What does this achieve? - it gets noted on your record you declared yourself -no extra Brownie points for that BUT it also sets the date of your departure from the UK. If you do not have a passport this can be a good thing. Your ETD is more than likely to be removed from you once you land in your country of origin so you might not have a record of departure.

To be honest there is a fourth scenario - as 1 above but as you wander down to the plane you come across an embark control. A bunch of immigration officers randomly checking passenger’s doc's. See 2 for what will happen. This is a pain because they might just hold you up enough to miss your plane. The time scale between this happening and 2 & 3 above are quite different. You effectively can dictate 2 & 3 as you decide when to check in and go through to the terminal.

[khan85]

thank you for your reply really appreciate it

let me give you the quick story

My husband came to the UK on a student visa (enrolled onto a course but never actually attended the uni properly and decided to work instead), he realised that his passport was about to expire before the viza date..so his brother in law who was in the UK on visit at that time told him that he would be able to renew the passport for him... i dont know what my husband was thinking he took his advice and brother in law went to pakistan and so did the passport..

its been over a year now and there is no news about his passport, and now his viza has also expired, during this time we got married in November last year. i have been preparing for the spouse visa, so that once he goes to Pakistan i can apply for him as a spouse..

so as advised from a few members of this board we went to the pakistani embassy in birmingham and told them that he had lost his passport, they simply shoved a few applications and said we would need a photocopy of his passport, which we dont have.. so wer back to square 1


one more question..

on the VAF4 Application form its mentions if the applicant has been to the UK and overtstayed etc etc..

how do should we answer this?? with honesty or??

im really confused!!! cant wait for all this mess to get sorted

[William Blake]

The "amnesty" word. (Shiver...)
It is not an amnesty, it is a time limited concession given to returning overstayers. Those that take the opportunity to return home before 1st October 2008 will not be subject to the automatic mandatory refusal (ban).

Yeah but is that a rule though? So if they try to refuse you on overstaying only you say - you know the rules there is a concession you can't refuse me on overstaying. Or is it just going to be up to the discretion of the immigration officer? In which case some malicious officer who thinks Britain is full will try to block your re-entry concession or not.

[jei2]

It certainly doesn't mean protection for the common or garden variety overstayer.[/quote]

Any good in stew? What do they taste like? I want to grow some.[/quote]



The flavour is somewhat lacking in the having a Member of Parliament to stand up and harangue Liam Byrne on your behalf area. In fact some can be quite bitter..

[William Blake]

"Lawbreakers should not be allowed to benefit from their crime."

Hate to be the pedant but, what crime?

1. An overstayer is a person who was granted limited leave to enter or remain in the United Kingdom, but who neither left the country on the date indicated nor asked for the leave to be extended.

2. Overstaying is an offence, contrary to s.24(1)(b)(i) of the Immigration Act 1971. Section 24(1A) of the 1971 Act, which was inserted by s.6(1) of the Immigration Act 1988, provides that a person commits the offence on the day when he or she first knows that leave to enter or remain has expired, and continues to commit it until such time as his or her position is regularised, for example through a further grant of leave.

I just wondered in light of that definition is someone whose leave has lapsed and awaiting a reconsideration considered to be an overstayer?Since they have asked for their leave to be extended?

[vinny]

See also Section 3C and 3D of the Immigration Act 1971 (as amended).

[MaiGT]

There is so many pieces of legislations which have to be referred to - one is bound to miss some of these amendments!!!

And the timing of the credit crunch! People have to finance their leaving and return.

[William Blake]

What does the definition mean? I have looked at section 3C and that applies where an application was made within time and leave subsequently lapsed. The definition of overstayer here is

--------
Overstayers
1. An overstayer is a person who was granted limited leave to enter or remain in the
United Kingdom, but who neither left the country on the date indicated nor asked for the leave to be extended.
2. Overstaying is an offence, contrary to s.24(1)(b)(i) of the Immigration Act 1971.
Section 24(1A) of the 1971 Act, which was inserted by s.6(1) of the Immigration Act
1988, provides that a person commits the offence on the day when he or she first
knows that leave to enter or remain has expired, and continues to commit it until such time as his or her position is regularised, for example through a further grant of leave.
4. An overstayer is here 'in breach of the immigration laws' and, as such, does not
meet the residence requirement for naturalisation in paragraph 1(2)(d) of Schedule 1
to the British Nationality Act 1981 (see Annex C to Chapter 18).
5. When it is found or suspected that an applicant is still an overstayer the file should
be sent in the first instance to the relevant immigration caseworking group for
consideration to be given to the applicant's status under the Immigration Rules.

---------

So in my case my visa expired 31 January 2008. I physically received the refusal notice for ILR based on long residency on 14 February 2008 but it was dated 15 January 2008 (it went to neighbours address). I then submitted for reconsideration on 15 April 2008, which came back on 7 July 2008 upholding the original decision. So in light of that part of the definition of an overstayer that says :

, but who neither left the country on the date indicated nor asked for
the leave to be extended.

Both when I made the application for ILR and for the recon I was asking for leave to be extended. So am I an overstayer from 31 January til now or was I not an overstayer for the period the recon was with the Home Office?

Also:

What exactly is the concession?

-----
The new rule, the elegantly designated paragraph 320(7B), includes a sort of tarif system:
· Overstayers who leave within 28 days of the end of their visa and pay for their own departure can come back immediately
· Those who otherwise breach immigration laws but leave voluntarily and pay for their own departure can return after 12 months
· Those who breach immigration laws, leave voluntarily but whose departure is paid for by the Home Office can return after 5 years
· Those who breach immigration laws and are removed involuntarily at the expense of the Home Office can return after 10 years.
An important concession was announced last night: the new rule will only apply to those who have not departed the UK before 1 October 2008. There is therefore a grace period before this comes into effect, which will enable overstayers to take legal advice and make arrangements to leave in the knowledge that there is no immediate disincentive to their doing so, as long as they leave by 1 October 2008.

--------
And:
-------
A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules

---------

There he talks about not being automatically refused under these provisions but is the concession directed at refusal as a consequence of overstaying or at the planned new penalties for overstaying. In other words can one use the concession to have overstaying overlooked or is it the case that one can only use the concession to have the penalties (the ban) of overstaying overlooked. ECO can always refuse an applicant for having overstayed. So it seems that if one has overstayed and avails oneself of the concession entry clearance can still be refused for overstaying even though under the concession the ban won’t be inflicted. Is that correct?

This actually worries me, as I now will be seeking re-entry on a work permit visa from abroad (I intend to apply for JR before I leave and I have checked with the court that it is permissible to apply and leave). I have a persistent fear that ECO will try to refuse me entry because of overstaying and the failed ILR application.

[mna8]

Hi,

My friend overstayed here and left voluntary. He got a work permit (not HSMP) and went back home to apply for EC (Entry Clearance) and but it got reject 320 (7b) and they said you didnt leave uk voluntary and they implement on him the new law. Can anyone help how to prove that he left voluntrary? and he provide all the information correctly plus put the case reference no. of UK home office. What can be done? Please help as he is in problem.

Thanks

[jei2]

So what proof have they shown that he didn't leave voluntarily?

I think in this case the onus is on them as there is nothing in the concession that says you have to provide proof of having left voluntarily, only to show that you were in the UK at a particular time. However I did just blink so...

Has he produced the evidence of his flight booking eg receipt/payment slips or credit/debit card record etc? If he can and this is the only reason for which he was refused, then he should submit these with a covering letter and request a review.

[mna8]

Thanks for the reply. But if he requested a review what will happen to the appeal. Are we going to get the additional time or we dont have any appeal time left. For you information I am attaching the Refusal information what they send:
"I am satified that you meet the requirement of paragraph128 and 320 of the immigration rules, except for the following:
Home office record shows that you were removed on DATE. Whilst you claim to have made a voluntary departure you have not provided no evidence to suppor this claim and from the information avaiable to me it appears that your removal from the UK was enforced. Given your previous adverse history of immigration history I am not satisfied that you have given a full and frank account of the circumstances surrounding your departure from UK. I therefore refusing your Entry Clearance uder paragraph 320 (7B) of the immigration rule."

My question is can we send for a review and appeal. My understanding is that he is rejected only because he cannot prove voluntary exit or I am missing some point here.

[jei2]

How did your friend leave the UK? Did he book his own flight and pay for it himself or was he assisted by the government?

He can request a review and appeal at the same time. If the review is successful he would be invited to withdraw the appeal.

But first you need to clarify if he's in the right.

Also what country did he apply from?

[mna8]

HI,

Actually I paid for his ticket. He left UK and he apply from Pakistan for his Entry Clearance. HO didnt pay anything.

Do we have anything which says that this new law will be implemented after 01 October.

Thanks

[Frontier Mole]

The refusal and the version of events do not match up. If removed there will be plenty of paperwork to go along with the removal. IS151A & IS151B just to start with. There will be possibly an IS93 self check in docs.
All these doc's get put into the system and the ECO can "see" them as entries. The actual UKBA system has electronic versions that are the actual documents issued all bar a signature etc.
For the refusal to go down as an enforced removal there would have to be these entries, therefore at least copies of the doc's.
It could be simply an error or that some where along the line he was scheduled for a removal and you as it were beat them to the line.
Documentary proof of arrival (entry stamp in passport) in PAK plus airline ticket & boarding card should go some way to support your contention.