THE OVERSTAYER CONCESSION

[William Blake]

Hi guys,

I applied for ILR based on long residence and got a refusal letter dated 15 January 2008. I physically recieved the letter on the 14 February 2008 after it went astray. My visa expired on the 31 January 2008. I consulted with solicitors and we submitted for a reconsideration 15 April 2008 which came back refused 7 July 2008.

I am going to leave and seek re-entry to the UK as a work permit holder shortly provided of course that the outstanding work permit applic comes back approved.

I have two issues on which I need clarification:

• 1) What exactly is the concession? Is it possible that under the concession someone who overstayed and left voluntarily before 1 October 2008 could be refused for overstaying but not given a ban? ie. does the concession exempt one from a refusal as a consequence of overstaying or does it only exempt one from the ban?
  
  Or is it the case that since overstaying is to be met by an automatic ban under the postponed new rules the concession which means one is not banned also implies that one is not refused for overstaying under the concession? In other words: I mean if you qualify for the concession you can't be refused for overstaying. Is that the case?

• 2) I have decided to file for Judicial review of the ILR application shortly before I leave. What effect will this have on the application for FLR as a work permit holder? I have checked that this can be done i.e. apply to the high court and then leave. I was hoping that one effect of this would be that ECO cannot refuse me for overstaying as a consequence of the failed ILR as the decision would be outstanding pending the JR hearing. I remember reading some clause about a period of overstaying followed by a grant of leave. Any thoughts on these issues please. I want to try and cover my bases as much as I can.

[William Blake]

Okay no takers on this one thus far.

Let me try and clarify my question.

Before the new 320(7B) came into effect on 1 April 2008 ECO could refuse entry clearance for overstaying using their discretion. But now refusal under 320(7B) is automatic with a ban unless 320(7B) does not apply. Has this removed ECO discretion to refuse applicants for overstaying? To me it seems that it has. So I wonder then does this mean that if you qualify under the concession or 320(7B) does not apply to you, you cannot be refused for overstaying. That is to say the situation where someone could be refused for overstaying but not banned does not exist (anymore). So its either ECO refuse and ban OR grant.

[Twin]

Okay no takers on this one thus far.

Let me try and clarify my question.

Before the new 320(7B) came into effect on 1 April 2008 ECO could refuse entry clearance for overstaying using their discretion. But now refusal under 320(7B) is automatic with a ban unless 320(7B) does not apply. Has this removed ECO discretion to refuse applicants for overstaying? To me it seems that it has. So I wonder then does this mean that if you qualify under the concession or 320(7B) does not apply to you, you cannot be refused for overstaying. That is to say the situation where someone could be refused for overstaying but not banned does not exist (anymore).

When the new rule was made, paragraph 320(11) which deals with discretionary refusals was made redundant, so it was effectively removed.

However, it's been brought back in again since the announcement of the concession. They have decided that in a case where 320(7b) does not apply, but the applicant has significantly contrived to frustrate immigration rules, then paragraph 320(11) should apply. What i'm not sure of is if refusal under this clause will effect a ban (seeing as it is discretionary, I wouldn't think so but that is still a gray area to me).

[William Blake]

320(11)

(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

So this is for folks who try to manipulate the immigration rules. Whatever that is. So is being an overstayer as a consequence of a refused application and then leaving to seek re-entry under the concession contriving in a significant way?

At any rate if you are going to contrive to do something its always best to do it in a significant way. One would not want to be thought of as insignificant. If its worth doing...

[Wright]

320(11)

At any rate if you are going to contrive to do something its always best to do it in a significant way. One would not want to be thought of as insignificant. If its worth doing...

That is very funny.

[William Blake]

So am I right in saying:



refusals solely on the basis of overstaying do not exist if the concession applies and there is no contriving



Is this correct guys?

[jei2]

WB,

Methinks you worry overmuch.

The concession is for:

anyone who returns home before 1st October 2008 and

Who hasn't significantly contrived to frustrate the rules.

So to answer your question above - yes you are right in saying this.