Removal of 28-day grace period for FLR extension applications

21 November 2016

The recent changes to the UK immigration rules remove the ’28-day grace period’ which allowed applicants to apply for further leave to remain (FLR) after their current visa or leave to remain had expired. Apart from other migration categories, the new Home Office regulations also apply to extension applications made under the partner route on or after November 24, 2016 including spouse, unmarried partner and dependent children applications sponsored by British citizens and UK permanent residents.

The 28-day grace period was established in October 2012 for all visas to allow the UK Visas and Immigration (UKVI) to disregard a small period of overstaying by the applicant provided an extension application was submitted within 28 days from the expiry of the initial visa. In this case, the examining UKVI officials could consider extension applications under normal immigration rules and procedures without imposing any penalties or sanctions on the applicant. The 28-day grace period arose from an amendment to the Immigration Act 1971 referred to as ‘Section 3C leave’. A person would not be deemed an overstayer while they were waiting a decision on an in-time application. However, when the application for a visa extension was made out of time, section 3C was not applicable. The 28-day grace period was therefore introduced to deal with extension applications made post the expiry date of the visa. It has been considered helpful in preventing out-of-time applications from being disregarded because of a simple mistake or exceptional circumstances. This approach was confirmed by the Upper Tribunal in December 2015 in the case of R vs Secretary of State for the Home Department.

Effective November 24, 2016 the 28-day grace period will no longer apply. The government seeks to emphasise the importance of UK immigration laws being complied with strictly. Recently, the Minister for Immigration, Robert Goodwill, published a written ministerial statement summarising the amendments and noting that the new requirement is designed to encourage greater compliance with the rules. Effectively, this means that all those with a valid visa to remain in the UK (either on the partner route or other) must ensure that their extension applications are made before their current visa expires.

In an attempt to reduce the harshness the government has reduced the 28-day period to 14 days. Currently, the UKVI can disregard this limited overstaying period if the Secretary of State considers there is a good reason beyond the control of the applicant or their representative, for the tardiness. Moreover, any person who has obtained extended leave via section 3C can only stay for 14 days from the expiry of any leave extended by section 3C.

Thus far, the reduced grace period has received wide criticism, on the grounds that it does not adequately protect individuals who are entitled to remain in the UK because there may be circumstances beyond their control. The critics note that there is a genuine need both for leniency and for setting realistic time frames. There are specific cases, for instance, which would lead individuals to infringe the new time limits. Without a doubt, some applicants who have been refused permission to remain in the UK may need more than 14 days to seek legal advice, understand their current situation and consider the best option for themselves and their families.

The shorter 14-day period places undue pressure on families, critics note. If the objective of the grace period is to provide leniency, then the regulations should remain true to the spirit of the law and offer a realistic time period for applicants to put their affairs in order. “A 14-day grace period is better than nothing,” argue those who back the new requirement, though there are many examples of cases in which 14 days may simply not be enough. If an individual’s right to remain in the UK is paramount, and leniency is taken into account, the measure can, perhaps, be considered excessively strict. Until any amendments are made to the new regulations, however, all individuals relying on visas to remain in the UK should make it a priority to apply for extended leave before their current visa expires.

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