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

[Mr Rusty]

There is an area of uncertainty here which is starting to affect cases like this. The following is a paragraph from a letter from the Minister to Law Practitioners back in April: (I haven't got it in a form that I can cut and paste, but it is verbatim)

"People who are leaving voluntarily should generally be served with form IS151A (Part 1) confirming their status, and not with IS151A (Part 2) or an IS151B, which are removal decisions. Nevertheless, even if someone was served with a removal decision while leaving voluntarily, this will not mean that he or she will be treated for the purpose of the re-entry ban as having been removed from the UK. It is perfectly possible for a person to leave voluntarily after being served with a removal decision, but it is only those who are actually removed or deported who will be subject to the ten year ban. Our guidance to ECOs makes this clear."

So, the first sentence really covers the people who are served with a 151a whilst departing from the UK, and they seem to be in the clear. But his second and third sentences seem to contradict each other, particularly when compared with the actual guidance to ECOs from which I quote Section 26.17.8:-
"What is removal?
If a person has been removed or deported, then his future applications will be refused for ten years.

However, you need to be satisfied that the applicant was actually removed or deported before applying these provisions.

Remember that making a decision to remove a person (Form IS 141 A (sic) part 2 or IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A) do not in themselves mean that the applicant has been removed from the country. It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him, in which case future applications should only be refused for one or five years, not ten."

The last sentence of that seems to say that although the Minister ruled out a 10-year ban, offenders can still cop it for one or 5 years, which may be what the ECO has done in this case.

I can only guess that the Minister's sentence beginning "Nevertheless..." applies only to someone who is served with removal directions when they've already volunteered to go. The reality probably is that unless someone, immediately on receipt of an adverse decision from a caseworker which includes a 151a, or is arrested and served with same, and immediately volunteers to depart, he/she will be treated as having been removed, and ECOs will invoke 320.7(b)

But who knows?

[jei2]

Mr Rusty

I can't see the contradiction. It seems clear that even with the issue of the IS151A or B, the applicant should not be treated as having been removed from the UK.

mna 8

It does seem as if there's more to the background or a straighforward error. Are you sure you've been given the full picture by your friend?

As far as I'm aware, Pakistan are up to date on these rules.

If the departure was straightforward and voluntary, I'd put the evidence in asap and request a review.

[mna8]

Thanks Guys,

Well I think I will give you some more detail what he told me. He came UK on a visit visa and he applied for a course during his visit visa still valid. He contacted the solicitor and paid money to get his student visa sorted. Solicitor provided him with a letter which he submitted in the college and start studing. During his studies he keep contacting Solicitor but he kept on saying that the documents has been with the Home Office. After a year or so he reqested to give his passport back and solicitor said it is not with him it is with the Home Office. He got tried of asking him so he contacted other solicitor and discussed his case with him. He send some letter to that solicitor and ask for his passport but still he didnt return but after couple of letter from the new solicitor the other solicitor return his passport without any thing or without any HO reference no. After know this the new solicitor applied for an applicition to the HO under Human right which got refused. Then they appeal that and it got rejected also but during that period he got work permit, they applied for FLR in country which again got refused and once it got refuse within 28 days he left the country. During all this time he went to centre to sign and he gave the ticket copy to the center and then only centre gave her passport one week before his travel.

HO didnt spend any penny to send him back.

Now he asked me how to send it for review. What is the procedure to send it for review. He need to send his passport back and all document again or just a covering letter with the information.

I am not the expert but I think they made a mistake but I might be wrong. He is in great difficulty and I am trying to help him and I am getting great help from you guys, thanks.

[Twin]

can only guess that the Minister's sentence beginning "Nevertheless..." applies only to someone who is served with removal directions when they've already volunteered to go. The reality probably is that unless someone, immediately on receipt of an adverse decision from a caseworker which includes a 151a, or is arrested and served with same, and immediately volunteers to depart, he/she will be treated as having been removed, and ECOs will invoke 320.7(b)

Can this be true?

[Mr Rusty]

can only guess that the Minister's sentence beginning "Nevertheless..." applies only to someone who is served with removal directions when they've already volunteered to go. The reality probably is that unless someone, immediately on receipt of an adverse decision from a caseworker which includes a 151a, or is arrested and served with same, and immediately volunteers to depart, he/she will be treated as having been removed, and ECOs will invoke 320.7(b)

Can this be true?

I don't know. But that's why I say there is now an area of uncertainty. The concept that someone is served with a 151a Part 2 and then decides to claim asylum/human rights,or makes some other application, or waits for UKBA to obtain a travel document for them (a cause of much delay), and then gets on a plane only when all other options have disappeared, is stretching "voluntarily" beyond credibility - in my opinion.
Bear in mind that anyone who is arrested and served with papers could have made any of those applications before they were caught, so they can hardly be said to be voluntarily departing once they do come to notice, if they then dig their heels in.
Until this is tested at appeal, who can say?

[mna8]

HI,

But in his case he is the one who inform about his presence to HO. He was cheated by solicitors. During his full time after he submitted his application to HO, court case, appeal, workpermit, and FLR he never go beyond 28 days. Once his FLR for work permit rejected also he left the country.

If he send a review usually how long it will take, and what are the normal time of appeal if we do it UK.

Thanks

[Mr Rusty]

HI,

But in his case he is the one who inform about his presence to HO. He was cheated by solicitors. During his full time after he submitted his application to HO, court case, appeal, workpermit, and FLR he never go beyond 28 days. Once his FLR for work permit rejected also he left the country.

If he send a review usually how long it will take, and what are the normal time of appeal if we do it UK.

Thanks

My comments were in general rather than specific to your friend's case, and he may well be able to argue that he was not removed. If he emails or writes to the Entry Clearance Manager at the office where he was refused and asks for a review, he should get a reply within a few days. But he should also ensure that his appeal is submitted within the allowed period, which I think is 28 days. He can always withdraw it if the ECM overturns the decision.

[Twin]

I disagree.

can only guess that the Minister's sentence beginning "Nevertheless..." applies only to someone who is served with removal directions when they've already volunteered to go. The reality probably is that unless someone, immediately on receipt of an adverse decision from a caseworker which includes a 151a, or is arrested and served with same, and immediately volunteers to depart, he/she will be treated as having been removed, and ECOs will invoke 320.7(b)

Can this be true?

I don't know. But that's why I say there is now an area of uncertainty. The concept that someone is served with a 151a Part 2 and then decides to claim asylum/human rights,or makes some other application, or waits for UKBA to obtain a travel document for them (a cause of much delay), and then gets on a plane only when all other options have disappeared, is stretching "voluntarily" beyond credibility - in my opinion.
Bear in mind that anyone who is arrested and served with papers could have made any of those applications before they were caught, so they can hardly be said to be voluntarily departing once they do come to notice, if they then dig their heels in.
Until this is tested at appeal, who can say?

[mna8]

Hi,

Just to let you guys know that he files Review and Appeal last week. Any one knows how long it take to get the out come of the Review.

Thanks

[aachaudh]

I want to know if the new rules apply to those people who have a valid reason for overstay. For example, in the case of someone who applied for a visa and on waiting for the reply their visa expired. Now if the visa application is rejected, then how is the overstay period considered.

[republique]

I want to know if the new rules apply to those people who have a valid reason for overstay. For example, in the case of someone who applied for a visa and on waiting for the reply their visa expired. Now if the visa application is rejected, then how is the overstay period considered.

There is no valid reason for overstay.
In the circumstance you describe, you have not overstayed unless you continue to stay after rejection but leave promptly or you stay because you put in an appeal.

[karina10]

hi
im in a great stress
my gf came here as a tourist and overstayed for nearly 2 years ,now she wants to go back to her country and apply for a student visa, what are her chances getting the visa?, will she be banned from returning if they get her passport checked at exit control?, is this " grace period " that you talk about also for people who overstayed their tourist visa and seek to come to study?
if they check her passport at exit control will she be baned for 5 years?
wouldnt it be better if she leaves voluntarilly after the 1 october , so if she gets a ban that would be for only one year???
im really worried and dont know what to do .
pd: how can they know that she overstayed if eventually there is no exit control at the airport?
please advice.
cheers stressed guy.