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Overstayer or not ?
Posted: Mon Jul 26, 2021 7:08 pm
by Shafstrikez
Dear memebers and experts ,
My wife visa(post study work) appeal was refused back in 2014 which ended her section 3c .
She made a new application for Tier4 within 28 days after she received her apeal decision .
In 1st November 2015 she withdrawn her pending tier 4 application and left the Uk on 28/11/15. She got her spouse visa in December 2015 and has ILR.
Now we planning to apply her naturalisation but worried her previous situation , anyone can tell us when we withdrawn the application in November 2015 was her time from 2014-2015 considered as overstay as the tier4 application was made after section 3c ended but was within 28 days of grace period .
When she withdrew her new application which was made after her leave was expired and left the uk in November 2015 . Would the time after her withdrawal of application (28days ) is overstayed ? that be any problem?
Thanks for your response
Re: Overstayer or not ?
Posted: Wed Jul 28, 2021 9:53 am
by Shafstrikez
Any one can please answer the above question :
To summarise this
When section 3c ends , and new application is (out of time ) made within 28 days and then withdrawal pending application after a year and leaving the country within 30 days of withdrawal . What would be the status of the applicant during this time , would it be consider overstayer from the date when application was made when after 3c ended ? Or it would be the time when the pending application was withdrawn and the time she left the Uk ?
Thanks for your comments
Re: Overstayer or not ?
Posted: Wed Jul 28, 2021 5:18 pm
by secret.simon
My interpretation is that she was an overstayer from the time her appeals were refused and her Section 3C ran out till the time she left the UK.
Filing an application within 28 days does not create any form of leave. If an LR application is made within 28 days
and if that application is successful, then the overstay between the end of the earlier leave and the grant of leave resulting from the subsequent application is
disregarded (in spite of it still being an overstay; i.e. it is not nullified/cancelled).
While the rules and laws for naturalisation and immigration are different, I draw my conclusions for the underlined parts above from Immigration Rule 276B(v).
the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or...
The "between periods of leave" suggests to me that the overstay is disregarded only if it is bookended by two successful periods of leave at both ends.
In this case, the subsequent application was not successful (it was not even decided when she withdrew it) and hence the overstay ended when she left the UK on 28/11/15.
Therefore I would advise your wife to apply on or after 28/11/2025.
Re: Overstayer or not ?
Posted: Wed Jul 28, 2021 8:03 pm
by Shafstrikez
Thanks Simon for detailed knowledgeable input that really does make sense . Alothough it was our fault that she was over stayed and when she withdrew her pending application her course was already completed . But these are unfair regulations we have to deal with
Thanks again
secret.simon wrote: ↑Wed Jul 28, 2021 5:18 pm
My interpretation is that she was an overstayer from the time her appeals were refused and her Section 3C ran out till the time she left the UK.
Filing an application within 28 days does not create any form of leave. If an LR application is made within 28 days
and if that application is successful, then the overstay between the end of the earlier leave and the grant of leave resulting from the subsequent application is
disregarded (in spite of it still being an overstay; i.e. it is not nullified/cancelled).
While the rules and laws for naturalisation and immigration are different, I draw my conclusions for the underlined parts above from Immigration Rule 276B(v).
the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or...
The "between periods of leave" suggests to me that the overstay is disregarded only if it is bookended by two successful periods of leave at both ends.
In this case, the subsequent application was not successful (it was not even decided when she withdrew it) and hence the overstay ended when she left the UK on 28/11/15.
Therefore I would advise your wife to apply on or after 28/11/2025.
Re: Overstayer or not ?
Posted: Tue Aug 31, 2021 11:28 pm
by yellowbeard
I am not an expert but I think she’s not an overstayer as as you say before November 2016 there was the 28 days grace period. It is mentioned at page 46 of the Good character requirements guidelines:
https://assets.publishing.service.gov.u ... gov-uk.pdf