Switching to a tourist visa closer to Tier 5 expiry date

[timmyno7]

Hi there,

I am an Australian currently living in the UK on a Tier 5 Youth Mobility visa which expires on the 24th June 2015.

My partner and I have booked tickets to Glastonbury next year which begins on the 24th June and runs until the 28th June and this puts us in a little bit of a sticky situation!

What we were wondering is if we can leave the country before our expiry date, and come back in just before the start of the festival (before our visas expire) asking to be put onto a tourist visa?

We would have the following information with us:

1. One-way flight information showing us returning to Australia once the festival has completed
2. Termination of employment letters showing we have quit our jobs prior to coming back into the UK
3. Bank information showing sufficient funds to support us (1600+ i believe is the amount required?)
4. Address to stay at in London whilst we are in the UK (friends)

QUESTIONS:

Would this work?

Is there any other process we can undertake now within the UK to apply for an extension or for a tourist visa?

[Lucapooka]

I really don´t see a problem given that you have the foresight to prepare your paperwork in advance of any questions. You could even do this without the need to mention Glastonbury. London in an international hub for flights and it seems perfectly reasonable that a person who has spent time working in the UK would want to travel around Europe at the end of his residence, but then re-enter the UK to catch a flight back home. Good luck.

[timmyno7]

What do you think the chances are of being denied?

I have read good and bad things on similar posts, but not sure how organised they were with their paperwork...

[Frontier Mole]

You have 28 days to leave the UK after the expiry of your visa without becoming an ovrrstayer.Just leave after Glastonbury.

[timmyno7]

You have 28 days to leave the UK after the expiry of your visa without becoming an ovrrstayer.Just leave after Glastonbury.

Is this information printed anywhere? Or is it just a rumour etc?

Do you have any personal experience with this?

We've always been told to never overstay, no matter the amount of days...just a tad worried!

[Casa]

Frontier Mole is of course correct. This is UKVI guidance;
Any applicant who is applying for leave to remain must not have remained in the UK for
longer than 28 calendar days after the expiry of their original grant of leave, on the date of
their application. Remaining in the UK after leave has expired is commonly known as
overstaying.
The 28 day period of overstaying is calculated from the latest of:
 the last day of their latest grant of leave to enter or remain, or
 the end of any extension of their leave under sections 3C or 3D of the Immigration Act
1971.

The full info can be found here if you scroll through it to the relevant section;
https://www.gov.uk/government/uploads/s ... 6.0EXT.pdf

[Frontier Mole]

Thanks Casa - cut and paste is not great on my phone.

[timmyno7]

Frontier Mole is of course correct. This is UKVI guidance;
Any applicant who is applying for leave to remain must not have remained in the UK for
longer than 28 calendar days after the expiry of their original grant of leave, on the date of
their application. Remaining in the UK after leave has expired is commonly known as
overstaying.
The 28 day period of overstaying is calculated from the latest of:
 the last day of their latest grant of leave to enter or remain, or
 the end of any extension of their leave under sections 3C or 3D of the Immigration Act
1971.

The full info can be found here if you scroll through it to the relevant section;
https://www.gov.uk/government/uploads/s ... 6.0EXT.pdf

I appreciate this information greatly - one last set of questions:

Do I need to apply for "leave to remain" for this to apply to me? Or is the document basically stating that from the last day of my visa I have 28 days in which to leave, or become an overstayer?

[Casa]

The latter is relevant. You don't need to apply for leave to remain.

[timmyno7]

I'm still not feeling confident about this - considering we called immigration and they said that if we leave and try to come back on a tourist visa the immigration officer could say either yes or no on the spot...

Something just feels off about this 28 days - would we get a black mark on our record for leaving after the end date of our visa for instance?

[Frontier Mole]

UK does not have exit controls so there is record of when you leave.
You will not have a black mark - the bottom line is that you have 28 days to vacate, no come back. No issues.
However if you leave and return you are at a high risk of being refused entry.
Let's just say the senior individuals know the system and how it works.

[Casa]

Not if it's within the 28 days as per the Immigration Operational guidance posted.
However, regarding entering on the Tier-5 visa and requesting to be given a visitor visa, this is at the discretion of the border entry officer as you've been advised. You have to bear in mind that this would technically involve 'a switch' of category which isn't permitted from within the UK when on a Tier-5 visa.

'Let's just say the senior individuals know the system and how it works.' and probably none more so than Frontier Mole

[timmyno7]

If for example I went on a European trip in June (keeping in mind that my visa expires on the 24th) and came back to London on the 22nd - would I have problems coming back in to then go to my music festival from the 24th to the 28th, and then leave on the 1st July?

I get the feeling I would be grilled about my flight home - for example if they ask "you have two days left on your visa - when are you flying home?", should I be saying the 1st July and hope it is okay by quoting this 28 calendar days document, or just say that I'm leaving on the day my visa expires?

[Frontier Mole]

The suggestion that you come back from Europe a couple of days before your visa expiry is not such a great idea. Quoting the 28 day rule at that point will almost certainly ensure you get refused entry to UK. Will they pack you off home there and then, very unlikely but it will be a very poor experience.
Do you have open ended return tickets?
Do you have to travel to Europe and if so do you need to return so close to the visa end date?
If you were to return with a week grace and if questioned show open ended return ticket less likely to be as issue.

[timmyno7]

I thought as much - do you think it would be an issue if we came back a month before our visa expiry for example?

We do not have open ended return tickets unfortunately, so we'd have a set date on the tickets.

[Frontier Mole]

A month is fine. Trip round Europe before you head off home is normal and won't raise an eyebrow.
A credibility point - sorry I part set a trap with that question. If you have set date return tickets by default you were returning after your visa end date... So you have already decided to stay beyond the visa end date...
See how it works when you get asked a question at point of entry. Simple question but it would show you out as intending to remain beyond the visa expiry and enough to refuse you entry if you came in a couple of days before expiry.
Point of entry is a completely different game to being in the country and the 28 day rule does not apply.
Take care.

[timmyno7]

Thanks for your help Frontier Mole and Casa -

I think the best bet is for my partner and I to do any European travel at least a month before the end of our visa, go to the music festival and leave promptly after (1 week after visa expiry approximately).

This shouldn't raise any concerns at customs/immigration at either point when we're returning from Europe a month beforehand, or when we are leaving to return home 1 week after visa expiry.

Does this all sound correct and true to you?

[Frontier Mole]

Enjoy Europe, have blast at Glastonbury and return to sun down under (lucky git) all in the knowledge you will be fine with your new plan.
Chillax as you younger types say

[timmyno7]

Haha cheers!

Though to be honest I am quite enjoying the start of winter here in the UK!

[timmyno7]

One last thing I forgot to ask:

When coming across to the UK in the future (say in 2016 or something like that), will I have to declare my overstay on any visa forms (coming in as a tourist, or alternatively if I get a company sponsor visa etc.)?

[Frontier Mole]

Nope - because you will have left in the 28 day grace period you are not an overstayer.

[vinny]

Leaving/applying within the 28 days "grace" period of overstaying [* reduced to 14 days under 39E, effective 24 November 2016] (for leave to remain applications) does mean that you are an overstayer.

I think that you should declare any periods of overstaying (24(1)(b)(i)). Casa gave the definition that was correctly based on:

"Overstayed" or "Overstaying" means the applicant has stayed in the UK beyond the latest of:
(i) the time limit attached to the last period of leave granted, or
(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971.

Concession [* probably no more concession]:

or(iii) the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application, provided the application was submitted before the time limit attached to the last period of leave expired.

However,

The rule requires that the applicant has overstayed for more than 90 days (or for any period if, after overstaying, he went home at public expense including AVR or similar programme).

Therefore, simply overstaying 90 [* reduced to 30] days or less shouldn't affect future entry clearance applications. But don't break any other conditions. There may also be problems with private rented accommodation and driving too, part of a hostile environment.

Overstayers applying for leave to remain have no rights of appeal.

Overstaying may also disqualify British citizenship for applicants aged 18 or over, when they are subject to the Good Character requirements and Naturalisation residence discretion.

9.8.5.

A period of overstaying will be disregarded for the purpose of paragraph 9.8.4. (a) where the person left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, and:
(a) the person overstayed for 90 days or less, where the overstaying began before 6 April 2017; or
(b) the person overstayed for 30 days or less, where the overstaying began on or after 6 April 2017; or
(c) paragraph 39E applied to the period of overstaying.

Overstaying on a UK visa: law and consequences
Comment: how to fix the overstaying rules

Historically:

In paragraph 320(7B)(d)(i) delete “28 days” and insert “90 days”

Re-entry bans

7.19 Currently migrants who overstay their leave to enter or remain by more than 28 days are subject to a re-entry ban. Where a person subject to a re-entry ban seeks entry clearance or leave to enter, they will be refused, subject to certain exceptions for those seeking entry as family members. The length of the ban varies from one year to 10 years depending on whether the migrant departed from the UK at their own expense or at public expense, or whether the migrant used deception.

7.20 Overstayers are not permitted to work, they have no recourse to public funds, are denied access to free secondary healthcare and their details may be shared with credit agencies and other Government departments to deny access to benefits and services. However, where they fail to depart from the UK promptly after their leave to enter or remain expires, the re-entry ban can act as a disincentive to depart. Under the changes to the Immigration Rules the ban will only apply where the migrant overstays by more than 90 days. This extended period is to further incentivise voluntary departure and save the significant public expense incurred through enforced removal.

9.2 In paragraph 320(7B) for sub-paragraph (i) substitute:
“(i) overstayed for-
(a) 90 days or less, where the overstaying began before 6 April 2017:
or
(b) 30 days or less, where the overstaying began on or after 6 April 2017
and in either case, left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;”

9.3 After paragraph 320(7B), insert:
“320(7BB). For the purposes of calculating the period of overstaying in
paragraph 320(7B)(i), the following will be disregarded:

(a) overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave to remain was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review;

(b) overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of any related appeal or administrative review;

(c ) overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision.”.

Changes relating to overstayers

7.34. Paragraphs 320(7B)(i) and Appendix V paragraph 3.9(a) are being amended to reduce the period of overstaying which is permitted before a re-entry ban is imposed on individuals who have remained in the UK after their leave to enter or remain has expired. Unless specific exceptions apply, anyone who has overstayed for more than 90 days is subject to a 12 month re-entry ban. This is being reduced to 30 days.

Consequential changes are also being made to Appendix V, paragraph 3.8.

7.35. The ban was introduced in 2012 to encourage those who had only recently overstayed and who could no longer apply for further leave in-country to depart and re-apply from overseas. The period of 90 days was originally intended to reduce any incentive to remain in the UK without leave. The reduction in the 90-day period to 30 days is being brought in to increase compliance with the Immigration Rules and reduce overstaying, while still enabling those who have overstayed for short periods and who are essentially compliant to return to the UK relatively quickly.

Update: 39E(1) requires “good reasons”.

[timmyno7]

vinny - thank you for the information.

Would this be true of declaring for tourist visas also (if asked)? or just for longer term tier 1-5 visas?

[vinny]

There is a chance that an ECO may interpret an untruthful answer as deception, instead of an honest misunderstanding.

Deception in an entry clearance application imposes an automatic 10-year ban, unless exempted. Therefore, it's in your best interest to state the truth in all visa applications.

The General Visitor visa application form asks about the details, including dates and durations, of your previous trips to the UK within the last 10 years.

The Tier 1, Tier 2, Tier 4 or Tier 5 application form additionally asked

6.6 Have you ever been in breach of your immigration conditions for the UK?

6.6 Have you ever been in breach of your immigration conditions for the UK?
Answer ‘Yes / No’
If ‘Yes’ please provide details below
This will include overstaying or entering the country illegally, using a false identity or otherwise acting in such way that could cause you to be prosecuted and or deported or required to leave the UK.

If you did overstay, as defined above, then I think that you should answer 'Yes' and give the details. If the overstay period is not more than 90 days or at least a full year had passed, then it should be okay.

So, give truthful answers and you should be fine.

[timmyno7]

Very good information - thank you vinny.