Who is an Overstayer ?

[khans]

Hi Forum,

Grateful if you can provide links to some information that highlights what may cast an applicant as an overstayer.

I am currently awaiting decision for my out of time tier 2 application and in case it is refused I am making preparations to make an out of country application. This includes my employer conducting the RMLT and issuing me with a restricted CoS.
However, the only hinderance I foresee is that my out of country may be rejected on the basis of the fact that I over stayed for more than a period of 28 days after my application was refused.
Some useful info:
My first application was refused on 26th of Jan.
I then appealed immediately but the appeal was refused on 12th of April.
I then applied for permission to appeal to higher tribunal in time which was rejected on 1st of May.
Then I applied for the permission to higher tribunal directly and made the fresh out of time application with new CoS after that. I then withdrew the permission to appeal on 11th of May and informed the UKBA of that.

Hoep to hear form you soon.

Regards,
Khans

[geriatrix]

An overstayer is one who remains in UK beyond the expiry of leave issued.

Overstaying means the applicant has overstayed their leave to enter / remain.

From what you have posted, you became an overstayer on 01-May. (Section 3C protection ended).

Remaining in UK as an overstayer for more than 28 days can affect an entry clearance application.

[khans]

An overstayer is one who remains in UK beyond the expiry of leave issued.
From what you have posted, you became an overstayer on 01-May.


Remaining in UK as an overstayer for more than 28 days can affect an entry clearance application.

Thanks for your response Sushdmehta.

Is section 3C leave considered in that case? I was covered by section 3C when I made my fresh out of time application as I had applied for another permission to appeal on the 3rd of May. Section 3C applies after an application has been made. Does that cover me even now ?
Are all entry clearance applications rejected outrightly for over stayers. What arguments can one put forward ?

[geriatrix]

Section 3C protection ended when your request for permission to appeal in the high tribunal was refused (01-May).

You say your appeal was pending ... but it seems that what was (perhaps) pending was a permission to appeal to the high tribunal - a permission you sought for some reason, even after being refused that permission on 01-May. I guess you sought that permission in the hope that it may offer you Section 3C protection until you are ready to submit a new leave to remain application. Unfortunately, that is not the case.

Section 3C does not apply to out-of-time applications. And also, one cannot make a new leave to remain application when an appeal is pending.

[khans]

Section 3C protection ended when your request for permission to appeal in the high tribunal was refused (01-May).

You say your appeal was pending ... but it seems that what was (perhaps) pending was a permission to appeal to the high tribunal - a permission you sought for some reason, even after being refused that permission on 01-May.

The permission I sought after refusal on 1st of May was an option given to me in the rejection and I had 7 days from the date of refusal to do that. I posted that on 3rd of May and the made a fresh application on the 04th of May.

[geriatrix]

And also, one cannot make a new leave to remain application when an appeal is pending.

While either section 3C or 3D leave is in force, the applicant is not entitled to make any more applications for variation of leave to enter or remain.

[khans]

And also, one cannot make a new leave to remain application when an appeal is pending.

One can vary the application though.
You can make an application, withdraw the appeal and then vary your application by informing home office that the appeal has been withdrawn and that's what I did.

[geriatrix]

When an appeal is pending, there is no application outstanding that one can request to vary (as you put it). One cannot vary an application that has already been refused ... and for which an appeal is pending.

Section 3C makes a clear distinction between the decision on the application and the appeal against that decision. Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C (5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application.

You are confusing between "vary the grounds of an application already made" (allowed when Section 3C is in force) with "vary an application" (not allowed under Section 3C).

You applied for Tier 2 leave in the first place ..... and then again applied for Tier 2 leave. Same application ..... so what are you varying?

[khans]

When an appeal is pending, there is no application outstanding that one can request to vary (as you put it). One cannot vary an application that has already been refused ... and for which an appeal is pending.

Section 3C makes a clear distinction between the decision on the application and the appeal against that decision. Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C (5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application.

You are confusing between "vary the grounds of an application already made" (allowed when Section 3C is in force) with "vary an application" (not allowed under Section 3C).

You applied for Tier 2 leave in the first place ..... and then again applied for Tier 2 leave. Same application ..... so what are you varying?

How are out application treated then? I have read quite a few posts here on the forum where out of time applications have been allowed.

[geriatrix]

Out-of-time PBS applications may be allowed if the immigration rules allow such applications to be assessed just as in-time applications.

The downside (of out-of-time application) is that even if an such application is subsequently approved, any period of overstay in the UK resets the ILR clock.

[khans]

Out-of-time PBS applications are allowed because the immigration rules allow such applications to be assessed just as in-time applications.

The downside (of out-of-time application) is that even if an such application is subsequently approved, any period of overstay in the UK resets the ILR clock.

Is that the case even if the period of overstay falls before the 5 year period an applicant has completed by virtue of his tier2 leave ? for eg. if my leave is allowed and i complete my 5 years of stay in 2017 without over staying before extending my tier 2 after 3 years.
Is the whole appeal and withdrawal of appeal situation going to affect my out of time application ?

[geriatrix]

I believe you are switching from Tier 1 (PSW)? If so, resetting ILR clock is irrelevant to you ... as it is yet to start clicking.

Technically, it should since you made a new application while an appeal was pending. But in an organisation where the right hand doesn't know what the left is doing, it is unlikely that someone will be able to put 2+2.

[khans]

I believe you are switching from Tier 1 (PSW)? If so, resetting ILR clock is irrelevant to you ... as it is yet to start clicking.

Technically, it should since you made a new application while an appeal was pending. But in an organisation where the right hand doesn't know what the left is doing, it is unlikely that someone will be able to put 2+2.

Should I take that as a Yes! it will be impacted or No! it shouldn't ?