We recently reported on The Upper Tribunal decision to grant a couple permission to Judicially Review the Home Office’s refusal in the case of R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR [2016] UKUT 25 (IAC).  The Upper Tribunal in its decision went on to confirm that UK visa Applicants who have overstayed for a period of no more than 28 days, may continue to apply for leave to remain in the same way as a person who has leave. We have outlined the current rules and the Upper Tribunals comments below.Â
UK Immigration Rules: 28 day Grace Period
The UK immigration rules that came into force in July 2012 and October 2012 for most UK visa applications were amended to include a provision which stated that applicants for most UK visa applications including Points Based System and Settlement applications alike, who applied out-of-time would not fall for mandatory refusal, provided that they applied within 28 days of their visa expiry date.
The provisions go on to confirm that to be eligible to apply, an Applicant must have leave to remain in the United Kingdom at the time of making the application, but the rules further stipulate that any period of overstaying of 28 days or less will be disregarded.
The Rules were amended to ensure that Applicants who had made out-of-time applications within the 28 day grace period, and whose applications were ultimately approved, would still be considered to have a clean immigration history with respect to any subsequent application for settlement.
One of the main requirements for indefinite leave to remain is for an Applicant to show that they have been continuously and legally resident in the UK for a certain period of time. A gap in their leave could be considered a break of continuous residence, leaving them ineligible for ILR. The amendment to the rules since 2012 therefore allow persons who have had to rely on the 28 day grace period to continue to be eligible for settlement, which again, was a welcome development for many Applicants.
Upper Tribunal’s Determination
In Bhudia, The Home Office raised the argument that an application could be refused where an Applicant had overstayed irrespective of the whether the applicant made an application during the 28 day overstay grace period.
The Upper Tribunal disagreed with the Home Office and in its judgement confirmed its preferred interpretation of the rules regarding the 28 day grace period.
The Upper Tribunal comments:
We prefer the construction that the 28 day period specified in paragraph 284(iv) is to be measured by reference to the date of the application made and that the requirement enshrined in this subparagraph is satisfied provided that the application is made within a period of 28 days beginning on the date immediately following the final day of the applicant’s lawful sojourn in the United Kingdom.
The Upper Tribunal’s construction makes it clear that Applicants can continue to rely on the assumption that they can submit an application to extend their leave or switch their visa to a different category within 28 days of their visa expiry and that their application will not be refused wholly on this basis.
The Upper Tribunal did not provide additional clarification with  reference to the construing the visa expiry date, but since the applicant in Bhudia applied within 28 days of the expiry date of the visa, it was not an issue to be determined.This particular appeal concerned a refusal of a spouse visa extension, but the principle should apply to any applicant submitting an application within 28 days of overstaying in the UK.
Successful UK Visa Applications and Appeal Solicitors
Our team bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.
If you have had a visa application refused and you have been given the right to appeal, contact our expert immigration team for legal advice. Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through your appeal process step by step and limit the possibility of failure by complying with the strict letter of the law.
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