Evidence of overstaying in the last 10 years will have a significantly negative impact on people applying for UK citizenship, as new rules are introduced by the UK Home Office. Essentially, all people who have stayed on in the UK after their visas have expired will be refused citizenship apart from in certain circumstances.
The exceptions rely on overstaying being the only adverse factor regarding the applicant’s character along with one of the following:
- the person’s application for leave to remain was made before 24 November 2016 and within 28 days of the expiry of their previous leave, or
- the person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under of the Immigration Rules applied, or
- the period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider.
The third point may be seen as somewhat vague; how can it be said with any degree of certainty that the overstaying is or is not the applicants fault? From our understandings it could relate to secondary evidence, such as history of an abusive partner who did not allow the applicant to reapply for leave to remain. Or if the applicant was a child at the time of their overstaying a more sympathetic eye could be cast over the application.
How has the Home Office’s view on overstaying changed in recent years?
The Home Office has been progressively getting stricter on overstaying as the years pass by, with a steady decline in tolerance clearly visible in the past 5 or so years.
Until the end of 2014 the position was:
The decision maker will not normally refuse an application where the person has a history of evading immigration control themselves, particularly where there is no other evidence to cast doubt on their character.
In December 2014, this was amended to state that illegal entry in the last ten years would be a ground for refusal, as well as:
The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:
(a) failed to report
(b) failed to comply with any conditions imposed under the Immigration Acts
(c) been detected working in the UK without permission.
This is quite the change in policy and when people started being refused under these new rules there was some understandable confusion and controversy. The most common reason for refusal was due to unsanctioned work that the government found out about or was declared on the applicants’ forms.
Then, the Home Office tightened their grip on overstayers even more. Applicants with any period of overstaying in the last 10 years were sent a questionnaire which was designed to determine how they had been supporting themselves during that time.
In a few exceptional cases where they were able to provide unquestionable evidence – for example, having been in receipt of local authority support – applicants were accepted.
In the vast majority of cases though, such evidence was not available or was deemed not comprehensive enough. Often, the Home Office would refuse on the basis “we are not satisfied that you have been able to maintain yourself without access to employment or public funds”. Many were extremely disappointed and frustrated because there was no evidence of the alleged wrongdoing which meant that it was impossible to contest.
So what now?
At least this progression is now predictable and comes as less of a surprise than the 2014 changes to the view on overstayers. We can say with a degree of certainty now that people should not be applying for citizenship unless a full ten years has passed, as page 10 of the new Good Character Requirement guidance clearly states that they will not be judged as having a good character if:
‘they have breached immigration laws, for example by overstaying, working in breach of conditions or assisting in the evasion of immigration control.’
However, applicants should still be aware of that the guidance also specifying that the Home Office has discretionary rights to overlook applicants’ breaches of immigration requirements. For example people who have been granted a refugee status may not be appropriate to be punished by their illegal entry history even if it occurred during the preceding 10 years.
Article 31 of the Refugee Convention states that refugees should not have any penalties imposed upon them as a consequence of illegally entering or being present in the country of refuge illegally in order to seek sanctuary, provided that they:
- travelled to the country of refuge directly from the territory where they fear persecution
- presented themselves to the domestic authorities without delay
- showed good cause for their illegal entry or presence
Although Article 31 does not specify any minimum time before a person should claim asylum and this will need to be considered on a case-by-case basis, the guidance mentioning that it is not unreasonable to expect that applicants should claim asylum within 4 weeks of arrival.
Should applicants have any reasonable explanation for the delay they will need to provide detailed evidence to convince Home Office caseworkers.
Here to say, applicants who have failed to comply with immigration requirements in the past 10 years should be aware that their applications will normally be refused unless they can provide solid reasons to persuade Home Office caseworkers. After that if their applications have been refused unreasonably, they can still try to challenge the Home Office’s decision.
For those who cannot provide any reasonable explanation then they should normally wait until a full ten years has passed. We will keep you right up to date with how this effects people going forward and if the Home Office announces any changes to the guidance in the coming months.
In the meantime, if you have any questions on this subject please do not hesitate to contact us on 020 7928 0276 or email into info@lisaslaw.co.uk
