Overstaying

Click to view enlarged Overstayers gv51To overstay: verb. To remain in the UK beyond the expiry of one's leave to remain in the UK.

Overstaying has been a chronic source of annoyance to the British public because it not only embodies a disregard for UK law, but also embodies a drain on public funds and social services.

Historically, the UK government has maintained a lenient policy on overstayers, but an increasingly sour public mood, energized by redtop froth, brought about the measures recorded below. We are tracking them in blog-style fashion.

Transpondia discourages overstaying because it is abusive and the negative publicity inevitably spills over to affect immigrants who are here legally.
This page is updated on an on-going basis.

Update: 11 December 2008

Withdrawal of the Seven Year Child Concession

The Minister for Borders and Immigration (Mr. Phil Woolas): The United Kingdom Border Agency is withdrawing DP5/96, a concession which has also been referred to as the seven year child concession, as of 9 December 2008. The concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived continuously to the age of seven or over, or where, having come to the UK at an early age, they have accumulated seven years or more continuous residence. The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules.

The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the ECHR will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully.

(written statement given on 9 December 2008 and placed on the UKBA site) 

NOTE:  The 7 year concession was revived (in content) and codified into law in June 2012.

Update: 16 May 2008

The Entry Clearance Guidance has been amended to include the new HC321 provisions along with all the caveats and exceptions previously set forth by the Minister for Borders and Immigration, Liam Byrne. We note that trafficking victims are now covered by a temporary concession until the EU conventions are finalized.

Update: 13 May 2008

Debate at the House of Commons on HC321
At the end of the debate, the Minister for Borders and Immigration, Liam Byrne, made this comment...

First, we will not automatically refuse applications from people applying to join their family permanently in the UK-that is to say, those applying for visas as a spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A of the immigration rules; a fiancée or proposed civil partner, as set out in paragraph 290 of the rules; a parent, grandparent or other dependent relative, as set out in paragraph 317; a person exercising rights of access to a child, as set out in paragraph 246; or a spouse, civil partner or unmarried or same-sex partner of a refugee or person with humanitarian protection, as set out in paragraphs 352A, 352AA, 352FA and 352FD. Following some of the comments made by hon. Members this evening, I will of course check to see whether we have cast the scope of those exceptions correctly, but my initial analysis is that that is where the discretion should apply.

Secondly, we will not automatically refuse anyone who is under the age of 18 at the time of the breach of the immigration rules. My hon. Friend the Member for Islington, North spoke powerfully on this subject, as did the hon. Member for North Southwark and Bermondsey. That case has been well made.

The clarification that I want to make underlines comments that I have made to the Committee of my hon. Friend the Member for Hendon (Mr. Dismore) in the past that there should be a carve-out for victims of trafficking. We will put that into effect when we have ratified the Council of Europe's convention on trafficking.

"As to the caveats, this does not mean that people who need to go home and reapply will automatically get in; they will still need to meet the requirements set out in the immigration rules and they may be refused if they have contrived in a significant way to frustrate those rules. Nor is it or can it be a green light for the groups I have mentioned to deliberately overstay. We need to bring forward fresh proposals to ensure that there are consequences for these actions.

Suggestions have been made to me. Obviously, the need to go home and apply for entry clearances is one sanction, and other opportunities are presented in our Green Paper "The Path to Citizenship". For example, we may, because we could, make those who have breached immigration rules wait slightly longer before they become citizens, but I do not want to go into detail on that proposal this evening. I simply want to flag it up for the House's attention in order to illustrate the wider point: we must have sanctions for those who overstay."

Our comment: from this statement, three new policies can be inferred:

  • Those applying to enter the UK to join settled family members will not face the mandatory bans on re-entry (this is a significant departure from the earlier statements which appear below).
  • Those who committed breaches while under the age of 18 will not face the mandatory bans on re-entry
  • Victims of trafficking when the Convention on Action against Trafficking is ratified will have a similar exemption from the re-entry bans as children

The Minister has hinted that those who overstay but then enter the UK as family members will face difficult penalties acquiring permanent residence and citizenship. Presumably, these will be set forth in the "fresh proposals" mentioned above. 

Update: 24 April 2008

Withdrawal of Enforcement-Related Marriage Policies DP3/96 and DP2/93
House of Commons, written Ministerial Statement - 24 Apr 2008 : Column 109WS

 

The Minister for Borders and Immigration (Mr. Liam Byrne): As part of our programme of reform in 2008 to tighten Britain's border security I am today revoking two pieces of guidance which could have helped a handful of overstayers-people here illegally in the United Kingdom (UK)-to obtain limited leave to stay in the UK as the spouse or partner of a British citizen rather than go home and apply for a marriage visa.

These policies only applied to people facing enforced removal but gave an unfair advantage to those unlawfully in the UK compared to those who complied with the immigration rules in seeking a marriage visa before arrival. Withdrawing the policies will simplify the handling of marriage cases.

The fact that an individual is married to or is the civil partner of a British citizen or someone settled in the UK will continue to be a relevant factor to be taken into account when considering removal. Each case will be considered on its individual merits in line with the Human Rights Act and the immigration rules.

Our comment: DP3/96 was a concessionary policy where a couple would not be separated by the removal of one partner if certain conditions were met. The concession was largely obsolete because of the Human Rights Act and the removal of these policies is in line with the overall simplification initiative the BIA has been sponsoring since the beginning of 2008. There is a blog editorial on this development at Free Movement.

Update 20 March 2008

In a clarification issued by Immigration Minister Liam Byrne, we can now state with certainty the government's position with respect to those overstayers who are caught at an exit point and served with an IS151 removal order. Here is the relevant text...

...a practical question about how we will treat migrants who are served with Removal decisions (Form IS151) at airports when leaving the UK of their own accord. [...] Provided these people leave voluntarily at their own expense, they will only have future applications refused for one year. It is only those who are actually removed or deported by the Border and Immigration Agency who will be subject to the ten-year provisions.

This clarification by the Immigration Minister is important because the implications of leaving the UK and getting caught at an exit point are no longer a matter of conjecture. We hope Mr. Byrne's ruling here will be adequately communicated to ECO's in the field, and simultaneously express our concerns that the Minister may have inadvertently created a trafficking market for those wishing to avoid exit controls altogether. 

Update 18 March 2008

On 17 March in the House of Lords debate on HC321, the government announced a concession outside of the rules. The crux of this announcement was...

A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

The phrase "...a number of people..." refers (among others) to ILPA who had earlier announced an intent to pray against the bill.

The concession itself is a six-month grace period for overstayers to leave the UK and to thereby avoid the mandatory refusal scheme. As stated, overstayers who leave prior to the October deadline will not be subject to the provisions of HC321.

The government spokesman making this announcement was careful to add that an entry clearance will not be issued automatically to those who apply, but rather that the new provisions will not be enforced.

Transpondia notes that this grace period has been articulated in the form of a concession, and provides some leeway for discretion, but also leaves the government free to make exceptions to the rule which are adverse to the applicant if they deem it appropriate. Or to be blunt, because the grace period is a concession, exceptions cannot be challenged in court or via the appeal mechanisms in place for visa refusals. The point can also be made that this is the first large-scale transition arrangement put into place since the current government took the helm nearly a decade ago.

It is our view, however, that the majority of overstayers in the UK will not take advantage of it. This is because overstayers (in our view) do not generally trust the decision-making process and would opt to remain in the UK in the hopes of being eventually allowed to settle over the option of leaving the UK and facing the uncertainty of a fresh entry clearance application on pejorative terms. Therefore we conjecture that this concession, while certainly well-intended, will only affect a few overstayers, namely those who actually trust the decision-making process enough to risk leaving the UK.

Despite our doubts about its effectiveness, the bringing about of this concession unmistakably marks the importance of ILPA's opinion in the House of Lords. And for this reason alone, it is an important milestone in the evolution of UK immigration policy.

 

Update: 10 March 2008

HC321 is a group of changes to the immigration rules approved by Parliament in February 2008. The explanation accompanying the new rules say in part...

The General Grounds for Refusal are being amended to provide for the mandatory refusal of applications in which deception is used. They are also being amended so that previous breaches of the UK’s immigration laws will be taken into account in a consistent manner.

Heretofore, the UK has generally been lenient on overstayers who return to their country and submit a fresh application for entry clearance, especially in cases for settlement under the Family Formation/Reunion Program me. HC321 is an end to that era. The new rules call for mandatory refusals for those who have overstayed. This means that caseworkers and ECO's are now required by law to refuse applicants who have previously overstayed.

The above wording, "...taken into account in a consistent manner..." introduces the set of formulae that will be used to evaluate applications. The formulae are as follows...

  • One year if, following their breach, they left the UK voluntarily at their own expense;
  • Five years if, following their breach, they left the UK voluntarily at public expense; and
  • Ten years if they were removed or deported from the UK following their breach.

These rules apply to anyone who has overstayed more than 28 days. The explanation goes on to indicate that further changes to the rules are in the pipeline...

Where migrants have left the UK at public expense, we will also require them to repay the cost of their departure, once we have introduced primary legislation that allows us to do.

The rules are explicit that these provisions govern applications for entry clearance only. It is conjecture at this point how in-country applications from overstayers will be handled.

Interpretation of the 10 year ban is problematic because it includes the phrase "...were removed...". The Immigration Service has been monitoring various UK exit points for almost two years now. In cases where an overstayer leaving the UK voluntarily has been caught at an exit control, they have been served with an IS151 form. This is a removal notice, and a strict interpretation of the above wording informs us that the individual would be subject to a 10 year ban whereas had they not been caught, only the 1 year ban would take effect. However, ILPA made this comment indicating that despite the service of an IS151, the overstayer would be treated as having voluntarily left the UK...
 

[The government] maintain that if you are served with IS151A at the port when making a voluntary departure that merely records your status. It is an error to serve an IS151B although they acknowledge that it has happened. [The government] say that 'the system' can distinguish whether enforcement removed you or whether the departure was voluntary. [ILPA] say - how do you evidence that without dispute to an ECO? It appears to be their intention that even if an IS 151A has been served, you will not be treated as removed and will not face a 10 year ban if you make a voluntary departure...

If you are an overstayer reading this, the question most likely to arise is: What are the transition arrangements? To be brief, the answer is there are no transition arrangements. The rule activates on 1 April 2008 in big bang fashion. We have urged overstayers to leave prior to 1 April.

If you are an overstayer reading this after 1 April 2008, your most likely question is: I'm done for. What incentive do I have to leave at this point? The short answer is that there are no incentives for compliance, and we at Transpondia see this as a weakness in the rules. We expect that those facing a mandatory 10 year ban will use every resource at their disposal to fight removal because for many people a 10 year ban is tantamount to a life-time ban. This reaction will clog up the court system and turn a simple rule into a nightmarishly complex one.

Others will be asking: I have family life here. Will they impose a ban that separates me from my family? The short answer is yes. We are informed that the BIA secured agreement from the EU that interference with family life can be justified under some circumstances and the new rule is informed by this.

Many economic migrants will be asking: What about inadvertent breaches (such as being transferred to a subsidiary and not knowing a new work permit was needed)? The answer is that inadvertent breaches have not been provisioned for in the new rules. The ECO has no latitude for discretion because the grounds for refusal are mandatory. We expect that pressure from employers and other large stakeholders will mitigate this shortcoming.

A much smaller population reading this article will ask: I am an overstayer who is going for the concession that grants leave to remain to those who have been here for 14 years. How does the rule affect me? The new rule affects applications for entry clearance only. Applications under the long residence concession are in-country applications.

 


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Reviewed 9 May 2012

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