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As a direct access immigration barrister who has been practising as part of a successful team at Imperium Chambers for a while now we have watched, and in particular have noticed that the grace period in which an overstayer can make an application has been firstly introduced, previously an overstayer who had overstayed for years could make an application, at 28 days, now has been reduced to 14 days by virtue of the Statement of Changes to the Immigration Rules HC667 – which introduced the very unwelcome paragraph 39E of the Immigration Rules HC395:

References to the 28 day rule are replaced with reference to a new paragraph 39E which applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

The Explanatory Memorandum explains the new approach thus:

The 28-day period is therefore to be abolished. However, an out of time application will not be refused on the basis that the applicant has overstayed where the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made, provided the application is made within 14 days of the expiry of leave.

This leaves open what will amount to a good reason – especially if it is described as being beyond the Applicant or his representatives control. There are now two hurdles to be crossed, firstly individuals have now half the time to determine whether to make a new application and secondly some extraneous reason will need to be evidenced.

This rule is certainly going to be subject to challenge and any reported cases will be published on the blog in due course.

This blog follows on from the previous which makes it plain that the most important thing any Applicant can do is act promptly. If you have a refusal it is imperative that you contact someone very quickly to seek help. I would go as far as to say that if you think that your application might well be refused, i.e. you have seen the manner in which the law has changed you may wish to have an appointment with a lawyer prior to the decision so that you can plan for any eventuality.

I am running extra appointments in the evening and also at weekends in order to provide extra slots for those seeking help and have little time on their side. I cannot stress highly enough how important that it is that if you have a problem seek help now. Do not wait. If you find yourself detained it can cost you a fortune to seek release and there is no guarantee that release could be effected – better to avoid detention.