Unintentional overstay

[georgemitchell]

My friend came to the UK and did two years at an approved private school studying English. Her visa was going to expire at the end of January 2006. She wanted to do an NVQ level 3 qualification related to

care and was offered a place in a care home where she could do the practical training. The owner of the care home arranged enrolment on the course - state run education establishment - and said they would

apply for her work permit etc. She has studied hard and is assessed by the visiting assessor from the college for course work and has completed all her work related tasks. She is scheduled to finish the NVQ3

in December. Whenever she enquired about her permit/visa her employer said they were still waiting for it to be returned and that she shouldn't worry.

Last week she called me to say she had a problem. Her employer had called her in to inform her that, as far as I can tell, they never submitted a work permit application. They have still kept her passport and

said they will help her to continue onto NVQ4 next year by supplying her with some sort of letter to give to immigration when she returns to the UK after going back to Korea on completing the NVQ3.

Now, I think they are playing on her loyalty not to dump them in the ****, because she was reluctant to tell me the full details. I do know, however that she was fully under the impression that she was

complying with immigration procedures because the employer said they would deal with it.

I understand that although an NVQ requires employment, such employment is an accepted part of the course and an NVQ is therefore done on a student visa. I can't understand why they took her passport

and said they would apply for a work permit on her behalf when she should have applied for a new student visa.

So, can anyone advise what she should now do. She wants to continue on to the NVQ4 next year but has overstayed because of the employers advice, and deception as I see it. Should she contact IND and

apply for a visa providing all the facts? The employer is suggesting she leaves the UK after completing the NVQ3 without talking to immigration, and trusts she will be able to re-enter in February 2007.

Is there an immigration proceedure that deals with unintentional overstay, more particularly in this case where she believed an application was being done for her?

[Jeff Albright]

Sorry to hear about the problems.
Unfortunately, there is no such a term as "unintentional overstay" in the UK Immigration Law. Any overstay is treated contrary to the rules even if it is not your fault.
Getting a Work Permit is only a part of the procedure. The application for Immigration Employment document is the second, and the most important part.
Suggest her employer applies for Work Permit. Once granted, she will be expected to travel overseas in order to get an entry clearance under the Work Permit to return to the UK.

[georgemitchell]

Thanks for that Jeff.

Is there no approach that can be made to immigration, say by making a fresh application for leave to remain so she can complete the last two months of her NVQ course, that will then allow her to apply and continue with NVQ4 next year?

She is concerned that by not informing immigration now, on finding out about this situation, it will harm her immigration history and prevent her from continuing her studies next year.

If she believed the employer was taking care of the application it seems unfair for her to be labelled an overstayer that will jeopodise her career. Just wondered who to put the case to now rather than ignore it.

[Jeff Albright]

I understand the disappointment. There are many cases like this but regrettfully you cannot recourse to the immigration law just on that.

She cannot obtain Further Leave to Remain in the UK if she does not already have a valid leave to remain in an appropriate category for whatever reason. You cannot extend your leave from the leave that you do not have. The only way of doing this is re-entering the UK with the valid entry clearance.

Unfortunately, her case is not compassionate enough to be considered outside the Rules. She has not been in the UK long enough, has not formed a family life, etc.

In order for her to return in the UK she will have to apply under the categories leading to settlement, i.e. Work Permit, for example. It is unlikely she will be able to obtain a student visa again.

[Thandia]

Sorry about your friend, I can only imagine what she's going thru. However, I think the employer has clearly taken advantage of her because as far as I'm aware being a care assistant & studying for an NVQ in care is not considered as an occupation in a shortage skills area, neither is it on the approved list of occupations where a work permit can be issued. I feel she needs the services of an immigration consultant as she is clearly an overstayer now. I know a few Philipinos who are in the same situation through working for a private hospital. Suffice to say, they have not been able to obtain visas to return here & are still fighting to be allowed back a year on. All the best to your friend.

[nyetmo]

if she leaves the UK whether she gets the work permit or not she will never get the entry clearance.

All overstayers will be refused a visa , no reasons will be accepted.

[Jeff Albright]

if she leaves the UK whether she gets the work permit or not she will never get the entry clearance.
All overstayers will be refused a visa , no reasons will be accepted.

And where did you get this info from, I wonder.

[nyetmo]

It states in the UK law that overstayer are normally refused an entry clearance.

Check it if you do not believe me.

The onus is on the person to make sure that he/she observed the time limit.

Your employer will deny that are in it unless you have something in writing from them. Otherwise it will be difficult 4 u to proof you are not guilty.

Good Luck

[Jeff Albright]

It states in the UK law that overstayer are normally refused an entry clearance.

Yes but this rule is not always used and not directly applied, as practice shows. There are known cases when previous overstayers were returning to the UK as spouses.
If that rule was always in force as at is, there would have been thousands more cases in immigration courts, which would not have been able to apply proportionality principle of removal in the view of Article 8 - no one having a spouse/family here would have been removable. Yet, this is not the case.
What will you say on that?

[ppron747]

I'll join in, if I may, to agree with you, Mr A....

It is absolutely true that people who have overstayed in UK will find it more difficult to get a visa whose conditions include an intention to leave the country.

However, where the person is applying in a category that leads to settlement - eg WP, HSMP, spouse, fiancé, etc, it is entirely possible for an application from a former overstayer to succeed.

I suppose it is possible that, deep within the psyche of the ECO there might lay a predisposition to be more difficult when he/she sees an application from an overstayer, but that just means you've got to make sure you put in a strong application...

[nyetmo]

Spouses & family are different case - they can usually fight this and can succeed with a bit of difficulty but at the end 90% still can win.

However WP is slightly difficult unless you manage to get 5 years work permit which can lead to residency then yes overstayer can be successful in applying for entry clearance.

If you get less than 5 years ECO still can reject coz ECO will slap you with 320(11).

HSMP - I am not sure.

Overall it is very difficult for overstayer especially now when UK are quite strict with immigration laws.

[Jeff Albright]

However WP is slightly difficult unless you manage to get 5 years work permit which can lead to residency then yes overstayer can be successful in applying for entry clearance.

This is not correct. Any WP for the period over 12 months will not require a proof of returnability, i.e. still a path to settlement.
If you are talking in terms of "not overstaying again", no immigration category would give assurance to ECOs that it will not happen again to someone who has not observed "the time limit attached to their previous leave" in the past. Furthermore, there is no such principle in the Rules.

Overall it is very difficult for overstayer especially now when UK are quite strict with immigration laws.

Again, wrong. It is now a lot easier for an overstayer to return, specifically after October 2000 when they were no longer subject to deportation.
If you were right in your judgement, many overstayers, particularly long-term ones would be irremovable, because there would be no viable option for them to obtain entry clearance again, i.e. giving rise to series of new arguments under the Article 8, specifically in relation to their private lives as well as family ties, whichever applies more strongly.

[nyetmo]

I overstayed a while back.

I applied for HSMP visa I successfully got it but ECO refused to give me entry clearance today because I overstayed years ago. I did not overstayed that long it was less than a year.

So what do you say about that?

You never experience so how would you know? I had similar thought like you about overstaying apparently we both were wrong.

[Jeff Albright]

I applied for HSMP visa I successfully got it but ECO refused to give me entry clearance today because I overstayed years ago. I did not overstayed that long it was less than a year.

Sorry I do not believe you. You were staying overseas and thinking whether apply or not sitting on this forum and waiting for an appropriate topic to come up or what?
Were you writing all this to collect opinion from people?! Why did not raise a separate topic about your situation earlier?

So what do you say about that?

I wil say no more unless I see your refusal letter. Post it here (attach) and we will assess it. You can conceal your name on it if you wish.

You never experience so how would you know? I had similar thought like you about overstaying apparently we both were wrong.

I know from the advice received from lots of other people including professional immigration advisors. It also depends on your overstaying. Did you knowingly overstay? What was the reason?

[nyetmo]

want 2 believe me or not is up 2 u.

I have been there and got the t-shirt - I just merely sharing my experience as an experienced overstayer and ECO refused entry clearance.

I am not posting my refusals because it is not about me - I am just sharing things that I have actually experiece with the reader.

So people can know exactly what is happening instead of have been told by hearsays. What they do after that is up 2 them.

I am currently on appeal and is waiting for the honourable judges decision on or after January 2007 as stated on the letter receved from the AIT.

ECO refuse me based on Paragraph 128 and 320 as predicted.

If u want to help me then pls tell me how can I argue if ECO do not believe I am going to take employment except as specified on my work permit - what does HSMP got to do to with the WP anyway?

[nyetmo]

sorry I 4got to answer your question reason for overstaying.

I was applying for student visa extension to resit my ACCA paper and was refused.

I stayed anyway to re-sit my ACCA exams and guess what I pass!

So yeah I overstayed knowingly but with very good intention and it is worth it!

[Jeff Albright]

ECO refuse me based on Paragraph 128 and 320 as predicted.

How long was your WP for?
If it was for less than 12 months, you were bound for refusal.
You would not have gotten refusal only on 320.

[nyetmo]

2 years permit

I have not met the employer but was interviewed over the telephone as many foreign ppl who intended to work in oversea. The employer gave me a lot of info about his company.

They interviewed me 2x. Plus they have contacted my previous employment.

Apparently the ECO do not believe that I will be working for this firm and there find it weird I have never met my employer hence paragraph 128.

My prospective employer provided 2 supporting letters to the ECO but still they refused to believe it.

All proof is in front of them but still ECO is trying to make it difficult 4 me.

Come on ppl meet and marry on the internet these days and still manage to live happily for some.

Interview over the telephone is acceptable.

[Jeff Albright]

Yeah, it is hard.

Your main ground for refusal was of course 128 and it is now clear why they refused. It is certainly precarious that you have not seen your employer, have not for them and got approval for 2 years...

Any previous overstay makes any out-of-country application more vulnerable. They probably think that the skills required for that position are not unique even if you have been approved for Work Permit. What type of job is it? What is ACCA?

Have you been given leave to appeal?

[nyetmo]

wp 4 Assistant Accountant.

ACCA - Associaton of Certified Chartered Accountant

My Would be Employer is a small firm and is - OISC & ILPA registered firm

Do you know teaching english in Korea - all you have to do to apply is to send a copy of your passport and all certificates then the employer will telephone interview you and then thats it you got the job.

Some US employer does the same - telephone interview.

We are in modern days any type of communication shud be acceptable plus there is no UK law states that telephone interview should not be allowed.

I got a good job position so why would I not want to work for the firm? What better job than that? I am not prepared to be an Accountant yet. so Assistant accountant is very good position.

I am sorry but I really think para 128 is rediculous in my case.

[Jeff Albright]

I can understand your disappointment.

From the Home Office point of you, the credibility of your application was probably put in question, especially since you have broken the rules once. I do not see as if your employment requires someone with exceptional skills who could not be found within the UK or EU to do that job. There are millions of accountants in this country with the similar skills. Did your employer go through the right routes of advertising the vacancy, etc?
In my opinion, telephone interview is significantly different from the interview in person. It is difficult to identify all the skills the person has that way. When I had interviews last year, prospective employers were coming from overseas specifically to interview me. Your employment offer was also possibly viewed as suspicious by the ECOs.

Please do not get me wrong - I have only told you how the ECOs might have looked at your application. It is not for me to make judgements on your situation. Personally, I wish you well and good luck with your next move.

[nyetmo]

Thank you very much for your honest opinion.

I just wish if the ECO can be a bit flexible and reflect more on what I can bring to the country instead of assuming .... especially I am not imposing any danger threat to Britain.

I thank you again and I will pray very hard to god that my appeal decision will be a success.

Oh another thing - I opted for paper decision - is it da best thing to do?

instead of hearing option?

[Jeff Albright]

hearing is always better but since you are abroad, you have no other option than going for the paper one.

Good luck!

[nyetmo]

thanks jeff -u r a star