Overstaying in the UK- The impact of late visa applications when applying for settlement after 10 years lawful residence
The case of R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070.
top London immigration solicitors say the recent case of R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070 could affect applicants applying late for visa renewals who will eventually want to apply for leave to remain in the UK based on having lived lawfully within the UK for ten years.
It has been long established practice that if your visa expires but you submit an application for another visa within twenty-eight days of expiry of the old visa the Home Office will consider exercising discretion and grant the new visa. Historically, if the Home Office sanctioned short periods of overstaying when granting a new visa, it did not affect an application for settlement based on ten years lawful residence.
The best London immigration solicitors say that the recent Ahmed court of appeal decision conflicts with current Home Office guidance on ten years “lawful residence” in the UK.
How can OTS Solicitors help?
OTS Solicitors are Legal 500 recommended London immigration solicitors and featured in the BBC 2 series “Who should get to stay in the UK?”.
For advice on:
• Applying to extend your visa;
• Applications for settlement after ten years lawful residence or Indefinite Leave to Remain;
• Challenging the refusal of a ten year settlement application or an application for Indefinite Leave to Remain
Call OTS Solicitors on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors.
Ten-year lawful settlement
The top London immigration solicitors advise many migrants that if they have spent ten years in the UK and during which time they have been in the country continuously and lawfully, then in accordance with Home Office guidance, they can apply for Indefinite Leave to Remain in the UK.
For some migrants the ten years will pass slowly whereas for others, with work and family commitments, ten years can pass by in a flash. However, the court of appeal case of R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070 throws the definition of ten years continuous and lawful residence into confusion.
The definition of what constitutes “continuous and lawful” residence is important to the best London immigration solicitors and vital to applicants for Indefinite Leave to Remain based on ten years settlement because if a migrant fails the ten-year residence test then their leave application will fail.
The Ahmed case
The case of Ahmed looked at whether an applicant could say they had been lawfully present in the UK if over the course of their ten-year residence there had been short gaps between the end of one visa and the start of another. Whilst this would be technically classed as “overstaying” Home Office guidelines provide a period of discretion and grace if the gap between the expiry of one visa and the obtaining of the next one is less than twenty-eight days.
In the case of Mr Ahmed, he had lived in the UK for a period of ten years but during the ten years, he had “overstayed” on two occasions. The first time, in May 2008, the gap was three days between the expiry of one visa and the submission of an application for a new visa. On the second occasion, the gap was about nine days but took place over the Christmas and New Year period. Therefore, over a ten-year period, Mr Ahmed had been an overstayer for about twelve days.
You may question how Mr Ahmed could apply for settlement based on ten years lawful and continuous residence in the UK if he had “overstayed” on two separate occasions. Mr Ahmed had been granted new visas on both occasions that he had overstayed because the Home Office exercised discretion and disregarded the short periods of overstaying. Therefore, as the short periods of overstaying had not been actioned at the time of the visa applications, Mr Ahmed assumed that his ten-year settlement application would proceed smoothly.
Mr Ahmed’s application for Indefinite Leave to Remain was refused on the basis that his “continuous” leave had been broken by his being an overstayer and having gaps in his continuous and lawful residence.
Mr Ahmed appealed against the Upper Tribunal’s refusal of permission to apply for judicial review. The hearing in the court of appeal looked at the interplay between the Home Office Immigration Rules and found in favour of the Home Office.
Put simply, the court said if a migrant overstays on a visa and the Home Office grants a new visa, then the exercise of Home Office discretion at the time of the visa renewal does not cancel out the “overstaying” or make it lawful.
The best London immigration solicitors advise that if the Home Office follow this court decision then what it could mean in practice for migrants is that if you overstay on a visa, even if it is for a matter of days, the ten year clock for lawful residence could be put back by months or even years.
However, the court of appeal decision in Ahmed conflicts with current Home Office guidance to caseworkers on how to assess and calculate periods of continuous and lawful residence.
Home Office guidance on lawful residence
The Home Office guidance is to help caseworkers assess settlement and Indefinite Leave to Remain applications from people applying based on ten years residence in the UK.
This guidance addresses the issue of gaps in lawful residence and says that a settlement application can be granted if there are gaps of less than twenty-eight days and the applicant meets all the other criteria for settlement.
What does the Ahmed decision mean?
Of crucial importance for migrants is how the Home Office use the court decision in Ahmed. Will they change their guidance to Home Office officials assessing ten years residence or continue to exercise discretion in some cases?
What is vital is that until the position of the Home Office is clarified it is essential that migrants do not allow their visas to expire before applying for a new visa because of the long-term implications of doing so.
How can OTS Solicitors help?
OTS Solicitors are experts in visa applications and renewals and applications for settlement.