overstayer definition

lucky7 · Post by **lucky7** » Tue Feb 15, 2011 8:45 pm

Hi,
question about when one becomes an overstayer?

I applied right before my current visa expires which prevented me becoming an overstayer.

But then, if it is rejected, do I start to become an overstayer from the date it was rejected? Or, if I appeal, can I still consider myself not become an overstayer till my appeal is resolved?

I am worried cause I obviously dont want to overstay more than 28 days.

Please comment, thanks.

Mr Rusty · Post by **Mr Rusty** » Wed Feb 16, 2011 3:32 am

If you made an in-time application, you have the right to remain under the same conditions until the application is decided. If it's refused, your right to remain continues until the appeal is decided.

rakeysh.patel · Post by **rakeysh.patel** » Wed Feb 16, 2011 4:52 pm

Mr Rusty wrote:If you made an in-time application, you have the right to remain under the same conditions until the application is decided. If it's refused, your right to remain continues until the appeal is decided.

Quoting on, if for an unfortunate reason your visa gets refused and you don't have a right to appeal, I am sure UKBA will give you a time frame to avoid being a over-stayer. Usually this time frame is 28 days. Good Luck

tall_funky · Post by **tall_funky** » Thu Feb 17, 2011 3:29 pm

Mr Rusty wrote:If you made an in-time application, you have the right to remain under the same conditions until the application is decided. If it's refused, your right to remain continues until the appeal is decided.

And your legal stay continues until you exhaust your appeal rights!

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 7:51 pm

Today I got the bad news. Application was refused saying that: "I was seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules." and then it says: "Your right to appeal this decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002" is limited by operation of section 88 of this Act."

I checked the relevant sections and I think this means I can only appeal with human rights grounds.

Does this mean I am not an overstayer yet since I can still technically bring an appeal?

Post by **geriatrix** » Thu Feb 17, 2011 8:07 pm

I don't think you have been given a right of appeal.

Section 88: Ineligibility wrote:(2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependantâ€”
(a) does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,
(b) does not have an immigration document of a particular kind (or any immigration document),
[(ba) has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,]
(c) is seeking to be in the United Kingdom for a period greater than that permitted in his case by immigration rules, or
(d) is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.

Nevertheless, does the letter state a date by which you must submit such an appeal (on human rights ground)?

regards

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 8:11 pm

But the last point in section 88 says:
(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

The letter says:
You no longer have any right to stay in UK and unless you state other reasons to stay in country you must leave as soon as possible...

If you appeal, you do not have to leave the UK while the appeal is in progress...

Post by **Greenie** » Thu Feb 17, 2011 8:15 pm

sushdmehta wrote:I don't think you have been given a right of appeal.
Section 88: Ineligibility wrote:(2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependantâ€”
(a) does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,
(b) does not have an immigration document of a particular kind (or any immigration document),
[(ba) has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,]
(c) is seeking to be in the United Kingdom for a period greater than that permitted in his case by immigration rules, or
(d) is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.
Nevertheless, does the letter state a date by which you must submit such an appeal (on human rights ground)?

regards

I disagree. The OP has been given a right of appeal, albeit a limited one. therefore he still benefits from 3c leave.

Lucky if you choose not to appeal then you should leave within 10 days of receipt of your decision to avoid being an overstayer.

If you do appeal (if you believe you have human rights grounds to raise) then you can remain in the UK lawfully until your appeal is finally determined.

Whether there are any arguable human rights grounds is another matter.

Post by **Greenie** » Thu Feb 17, 2011 8:19 pm

what category were you applying for? On what basis are you here at the moment?

Post by **geriatrix** » Thu Feb 17, 2011 8:20 pm

lucky7 wrote:But the last point in section 88 says:
(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

Q. - Does Section 84(1)((b), (c) and (g)) apply in your case?
A. - No, unless you have been refused for reasons(s) that may be considered as facial discrimination or a breach of your human rights or a breach of obligations under Refugee convention.

regards

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 8:27 pm

I am just trying to comment on what I read, but I tend to agree with Greenie.

My understanding is that: Technically, I have a right of appeal with a human rights claim. That appeal becomes successful or not is another issue and is related to what you (sushdmehta) are saying. Also, the refusal letter seems to leave an open door as well by saying I can stay in UK if I appeal.

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 8:30 pm

Greenie: I am under Tier 2 now. I submitted a FLR(O) before that expires.

Post by **Greenie** » Thu Feb 17, 2011 8:30 pm

Sorry to be pedantic but it's not just if the reason(s) amount to facial discrimination/breach of human rights/refugee convention rights. It's whether the decison itself or the removal itself result in such a breach or indeed whether the decision fails to take into account the OP's human rights.

I'm not saying the OP has any arguable human rights grounds but just trying to make it clear to OP what the grounds mean.

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 8:33 pm

I am not expecting to win the appeal on human rights grounds. I am just trying to understand if my 3C status is still in effect to prevent myself being overstayer and whether I can submit an appeal to extend my stay legally.

Post by **geriatrix** » Thu Feb 17, 2011 8:40 pm

Greenie, thanks for the correction in the post above. Also, I agree that the OP does have a limited right of appeal, albeit only on HR grounds ... should have used phrased my response(s) differently.

luck7, having looked at some of your earlier posts, I assume that you wanted to switch to Tier 1 (General). Correct me if I am wrong but did you make the application for this stated purpose? And if so, who advised you to use FLR(O) form?

Yes, you may submit an appeal if there is a valid reason for appeal under the HR route or to prolong your "legal" stay in the UK for some more time. As Greenie mentioned, you have 10 days to submit such an appeal. If you appeal, section 3C leave will continue, and if you do not then section 3C leave will expire on the 10th day.

regards

shahzad80 · Post by **shahzad80** » Thu Feb 17, 2011 8:51 pm

...............

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 8:55 pm

Thanks a lot for the responses. I am relieved that you both agree that my 3C is still continuing and I can appeal just to lengthen my stay legally.

One question though: does my appeal have to make a lot of sense to be counted as a valid appeal? or will they consider it in any case?

sushdmehta: you are right. I was trying to get Tier 1, but did not qualify for it before my Tier 2 expires. So, I submitted FLR to gain time. Now, I qualify for Tier 1, so I am looking for ways to apply for Tier 1. Any ideas whether I can do it?

shahzad80 · Post by **shahzad80** » Thu Feb 17, 2011 9:02 pm

..............

Post by **geriatrix** » Thu Feb 17, 2011 9:05 pm

AIUI, you cannot make new application for leave to remain while an appeal is pending, and acceptance of out-of-time application for leave to remain for assessment is subject to UKBA's discretion .. so the choice is yours.

regards

shahzad80 · Post by **shahzad80** » Thu Feb 17, 2011 9:08 pm

..................

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 9:13 pm

I don't want to make a fresh application now, because I can only do it by post now which will take 4-6 weeks and I will become overstayed more than 28 days if it is somehow rejected.

If I submit the appeal now and then I will hunt for same day application-booking slots. If I get one I will withdraw appeal and try my luck with same day Tier 1. If it doesnt work I will leave without overstaying more than a couple of days. Anything wrong with this plan?

Post by **Greenie** » Thu Feb 17, 2011 9:39 pm

They won't consider your application at the peo if you are an overstayer.

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 10:12 pm

Regarding my appeal with human rights ground:
I found this, section 94:
http://www.legislation.gov.uk/ukpga/2002/41/section/94

Can you comment what this means for my case?

Post by **Greenie** » Thu Feb 17, 2011 10:23 pm

It doesn't apply to your case as you have not made an asylum or human rights claim that has been 'certified' as clearly unfounded. You have been told you can appeal on those grounds so you may do so. Im not sure that its going to help you though.

lucky7 · Post by **lucky7** » Thu Feb 17, 2011 10:35 pm

Coming back to your reply on "They won't consider your application at the peo if you are an overstayer."

Do you know if this actually happened to someone or where does it say so?
Thanks.

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overstayer definition

overstayer definition