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UK Immigration Rules: Visas and Overstayers

By: Abigail Taylor - Updated: 13 Dec 2017 | comments*Discuss
 
Immigration Visa Overstayer Offence

When considering applying for a UK visa, it is really important to consider what you want to do whilst you are here. In particular:

  • How long do you want to stay in the UK?
  • Do you want to work whilst in the UK?

There are several types of visa / leave to enter or remain for which you can apply:

Indefinite leave to remain

This allows successful applicants permission to live and work in the UK permanently. It will essentially allow you to permanently reside, work and build a life in the UK. You will not however have the full rights of a UK citizen (such as the right to vote in local government elections).

As 1: Tier 1 (Exceptional Talent) Migrant

This route is for extremely talented individuals in the fields of science, humanities, engineering and the arts who wish to work in the UK. Individuals are expected to be already recognised as world leaders in their fields, or who have demonstrated exceptional talent and are likely to become future world leaders in their particular field.

Entry will be granted to successful applicants for a period of up to 3 years and 4 months, subject to the following conditions:

  • You will not be entitled to benefits paid by the UK government such as job seekers allowance
  • You may be required to register your accommodation address with the UK police and keep this updated
  • You must not be employed as a doctor or dentist in training, or a professional sports person
Applicants must not fall foul of the general grounds for refusal (discussed below).

As 2: Tier 1 (General) Migrant

This route is for highly skilled migrants who wish to work or become self-employed in the UK. This is particularly targeted at those with particular skills that are desired to aid the UK economy such as writers, composers, artists and lawyers. Generally the applicant must have spent a continuous period of at least 5 years lawfully in the UK prior to application.

Entry will be granted for a period of 2 to 3 years with similar conditions to the above. Applicants must not fall foul of the general grounds for refusal (discussed below). In addition, the applicant must not be in the UK in breach of immigration laws, with the exception that a period of overstaying of up to 28 days will be disregarded.

Visitors visas

If you wish to stay in the UK for a shorter period, visitors visas are available. This will allow you to remain in the UK for a maximum of 6 months (or 12 months for a person accompanying an academic visitor as their child, spouse or partner). You must however meet certain conditions, including but not limited to:
  • You must not take employment in the UK.
  • You must not be coming to the UK with your main purpose being to undertake a course of study
  • You must have enough money to maintain and accommodate yourself, or demonstrate that your friends or family are able and intend to do so
  • You can meet the cost of your outward journey
  • You are age 18 or over
  • You do not intend during your visit to marry or form a civil partnership
  • You do not intend to receive private medical treatment during your visit to the UK

If you wish to visit the UK to marry, form a civil partnership, study, receive private medical treatment or work, you will need a visa which specifically allows you to undertake that activity.

Overstayers

We all know that there can be serious consequences for those entering the UK illegally, including deportation. However there can be equally serious cases for those who enter the UK legally but stay in the UK beyond their period of authorised stay. This group of people are commonly referred to as "overstayers".

It is a criminal offence (under Section 24 Immigration Act 1971) to overstay your period of authorised stay in the UK or fail to comply with the conditions imposed upon your admission into the UK without reasonable excuse. It is also an offence (under Section 25 Immigration Act 1971) to do anything to facilitate another person's illegal entry, transit or stay in the UK. This includes assisting an asylum seeker if done knowingly and for your own gain; there are exceptions for asylum charities.

'I am an overstayer and have been for a couple of years. I have a child, wife and a job in the UK. I'm scared that I'll get found out and get my employer into trouble'.

You are committing a criminal offence by staying in the UK beyond your period of authorised stay. So are your employers if they are aware that you are an overstayer. The offence can be tried within 3 years of commission (which it sounds here is ongoing). The maximum penalty is 2 years imprisonment and a fine. It is recommended that you speak to a lawyer if you are concerned that you may be currently committing a criminal offence.

'I have a student visa which expired recently. I am unsure about the extension process but only want to stay another 6 months. I'm thinking it would be easier to just overstay, but will that have an impact on ability to apply for a visa in the future if I want to come back?

As you have seen from the above conditions, a general migrant's application may be denied if they are a previous overstayer. Further this is a general ground for refusal of leave to enter or remain in the UK. If you overstay your authorised period of leave, you may therefore jeopardise your ability to apply for an extension or apply for a further period of stay in the UK in future.

Other general grounds for refusal include:

  • The applicant is currently subject to a deportation order
  • The applicant has been convicted of an offence for which they have been sentenced for a period of imprisonment of at least 4 years
  • The applicant has been convicted of an offence for which they have been sentenced for a period of 1 to 4 years, unless a period of 10 years have passed since the end of the sentence
  • The applicant has been convicted of an offence for which they have been sentenced for a period of up to 12 months, unless a period of 5 years have passed since the end of the sentence

If you are unsure about immigration applications to the UK and would like further assistance, you can obtain free advice from your local . Citizens Advice Bureau (CAB)You can also obtain more detailed immigration advice from an immigration specialist. All immigration advisors must be registered with the Office of Immigration Commissioner (OISC) unless they are an exempt organisation such as CAB. OISC can be contacted on: 0845 000 0046 info@oisc.gov.uk

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[Add a Comment]
Cass - Your Question:
Hello, I have a brother who's wife overstayed since 2003 who has been married for 8 years to his wife however they have been going through a immigration case since 2007 in which they was allowed to be wed in the Uk however they will not allow her right to stay they have very little money and have spent almost 7k on trying to get her stay. What other options does he have other then a continued Bill? - Can they receive legal aid? - If she returns home how long before she can return on a marriage visa?

Our Response:
They would not be eligible for Legal Aid, as Legal Aid no longer exists except in specific circumstances, please see link here. Unfortunately, this is beyond our remit to advise as we are a general information site and you are in need of an independent immigration specialist here. You can see more regarding re-entry bans via the link here.
AboutImmigration - 12-Dec-17 @ 11:11 AM
Raj - Your Question:
I was wondering if anyone could help me. I married 3 years ago abroad and have been living with my wife for 2 years in the UK. I am a British citizen and my wife is here on a spouse visa. Our son is British and was born in the UK last year. My wifes visa is due to expire in a few months. We have been having many issues during our marriage and especially during the last few months. She says she has no feelings towards me and when I tell her to go back to her country of birth then she says she is going to stay in this country. She may have been using me to get into the country. I dont think the marriage is going to last. What would happen to her and my child if I do not renew her visa? I dont know what to do.

Our Response:
You or your wife must tell the Home Office when you divorce or separate if her visa is based on your relationship. Your wife would then have to either apply for a new visa or leave the UK, please see link here, which should explain all you need to know. If your wife leaves the UK, the other concern would be regarding who becomes the primary carer of your child and whether your child would remain in the UK, or leave the country with your wife (if she is not granted leave to remain). This will be another issue you would have to address.
AboutImmigration - 12-Dec-17 @ 10:30 AM
@Cass it will likely be better for your brother's wife to leave the UK voluntarily without using public funds and applies for a spousal visa from her country if her husband meets the minimum income requirements of £18.6K per year.
TJ. - 12-Dec-17 @ 10:09 AM
@Raj if your wife's visa is not renewed she will have to leave the country when it expires. However if you divorce and she gets custody over the child she may be able get leave to remain in the UK as the parent of a British citizen dependant.
TJ. - 12-Dec-17 @ 10:03 AM
hello, I have a brother who's wife overstayed since 2003 who has been married for 8 years to his wife however they have been going through a immigration case since 2007 in which they was allowed to be wed in the Uk however they will not allow her right to stay they have very little money and have spent almost 7k on trying to get her stay. What other options does he have other then a continued Bill? - Can they receive legal aid? - If she returns home how long before she can return on a marriage visa?
Cass - 11-Dec-17 @ 3:41 PM
I was wondering if anyone could help me. I married 3 years ago abroad and have been living with my wife for 2 years in the UK. I am a British citizen and my wife is here on a spouse visa. Our son is British and was born in the UK last year. My wifes visa is due to expire in a few months. We have been having many issues during our marriage and especially during the last few months. She says she has no feelings towards me and when I tell her to go back to her country of birth then she says she is going to stay in this country. She may have been using meto get into the country. I dont think the marriage is going to last. What would happen to her and my child if I do not renew her visa? I dont know what to do.
Raj - 11-Dec-17 @ 3:19 PM
@Anu what the Home Office probably meant is that your baby lived illegally in the UK within that period as you may have not applied for a visa as a dependant. This will definitely affect any visa application that is made for the baby going forward especially if it is a visit visa.
TJ. - 6-Dec-17 @ 7:14 PM
Hi, I am on Tier 1 General Visa. My kid born(Sep 2016) in UK and returned to India having a Indian passport (Feb 2017). However when I applied for visitor visa in Aug 2017, it got rejected saying his stay is not regularized in the period of Sep 2016 (date from he born) till Feb 2017 (date he left the UK). Could you please let me know what is the procedure to regularise the same? Thanks
Anu - 6-Dec-17 @ 2:22 PM
Aziaz - Your Question:
Hi, I have no visa to live im the uk,my british girlfriend is now pregnant for me. Can I apply whiles she is pregnant or she has to have the baby first?

Our Response:
Much depends on whether you have overstayed your visa and are currently undocumented, in which case you would face an automatic rejection. If you are on a temporary visa and in the UK legally, then you would have to return to your home country at the end of your visa and apply for a spouse visa from there, if you fulfil the requirements, please see link here .
AboutImmigration - 4-Dec-17 @ 3:06 PM
@Aziaz if you are in the UK illegally it is most probable that any application you make inside the UK for further leave to Remain will be refused and you risk deportation. You however stand a better chance of an approval once your child is born but you will still face an uphill task as the child will have a British parent and the Home Office has no problem splitting up families these days.
TJ. - 2-Dec-17 @ 7:05 PM
Hi, i have no visa to live im the uk,my british girlfriend is now pregnant for me. Can i apply whiles she is pregnant or she has to have the baby first?
Aziaz - 2-Dec-17 @ 4:00 PM
@hello it is unlikely that a visa application that is made by an overstayer in the UK will be approved according to the current Home Office policy.
TJ. - 29-Nov-17 @ 3:13 PM
I came to the UK with 6 months visa and I have been here for over 3 years. I lived with my girlfriend who is a British citizen (Walsh) and we have lived together for over 2 years and planning to get married here. But since we cannot get married here because of my status, we have the plan to apply for a spouse because I need to work and support my self and also we want to spend the rest of our life together since we are diagnosed of HIV and having treatment in the same health centre. I hope your advice will be helpful. Thank you
hello - 29-Nov-17 @ 1:51 PM
@Meg the UK does not conduct immigration/passport checks on those exiting the country so it is unlikely that he will be deported at the airport. However him overstating in the UK will definitely negatively impact his current application to settle in the UK.
TJ. - 28-Nov-17 @ 3:49 PM
Hi, my husband and i and 3 boys have moved to Scotland from SA. My son(divorced to his dad) has a Holiday visa, and has been here with us(due to his dad not wanting to take him), while attormeys have been sorting out documents in SA for his settlement visa application, this has taken longer then expected. We left the UK before his 6 months was up and now returned. Are we vialating the rules, we are returning to SA for his settlement visa application shortly, (he has been back here for 2 months) will he be deported at the airport and how can we prevent this? My heart is shattered as i will be taking him back to my family in SA.
Megs - 27-Nov-17 @ 10:15 PM
Hi. I’m English My husband is Albanian he is illegal here in UK we asked home office for permission to get married they give it to us. So we r married now, he has never had any criminal record or anything, we have been waiting going for 10 months now and no decision yet so already we been waiting 10 months and he just received a letter to go to signevery 2 weeks and they stated that he isn’t allowed to work for 6 months until a decision is being made, its so stressful waiting and waiting when it could be years for a decision Any advice would be appreciated what we can do? Thank you
BD - 27-Nov-17 @ 12:03 PM
Hi, please I really needyour help about my mum situation. She came in the UK on 3April 2017 with a visitor visa, which was going toexpired on 27 juillet 2017. We sent an application for extension on 12 juillet 2017 based of my children and I disability , for her to stay longer and help me with the kids. The visa was refused on 6 November 2017, we received the letter on 8 November 2017 without her passport, we decided is better she voluntary depart. So we contact the voluntary departure and informed them that my mum is going home on 23 November 2017, she went and collect her passport at the airport, not paper to sign a part from the one to confirm that she decharged her passport. My problem is that, 1) Is she an overstay even though she made an application before her visa expired? She left the UK 2 weeks after the visa refusal at her own expenses. From juillet to November, we where waiting for the home office decision. 2) Do you think that she falls into the category of a year ban re- entry the UK, she didn't receive anything mentioned that she is been ban. 3) Will that 3 months waiting periode be considered as more than 90 days overstated, or is it after the decision be made? I am really confused with this 4) would it affect her future visa application, even though that it was for a reasonable situation, because we have all the professionals medical Health support letters explaining why they think that we need more help from my mum. Can you please give me your professional advice in this matter, because I am worry that my mum may not be allowed the uk visa based on overstay breaches laws.
Flora - 27-Nov-17 @ 11:53 AM
Is there any problems if a person overstay 12 days ?
sol - 24-Nov-17 @ 2:14 PM
hi i have lived in the uk 16 years, i served a prison sentence of 2 years after a drunken mistake which resulted in a street robbery,after my sentence i was then detained by the home office for a couple of months and was granted bail after. now i Sign on every two weeks and have been for the past 2 years since my release but i was given a deportation order. Me and my girlfriend( who has indifinate leave to remain ) are expecting our first child in January and been together 2 years but known each other 4-5 years. My question is how can i resolve my immigration. Please advise . Thank you
T.Z - 21-Nov-17 @ 11:03 PM
My son is uk citizen and I come to England as a visiter and than I applied to leave to remain butHO refused. I am appealing to stay. I am 65 years old, divorced, and I have no other relative, not a EU Community. My concerning is my granchildren that I am looking after them for my son and grandaugher go to work.Is there any hope for me?
Leny - 21-Nov-17 @ 7:29 PM
jos - Your Question:
Hi making an ednquire about a mate who was here on a tier 4 and overstayed due to change of government in his country and was scared of going back as there was a political crisis at the time, and now overstayed for over 2 years; got in a relationship along the line with a english girl after going through thick and thin together with her fully aware of his status as overstayer they got engaged during the time and she fell pregnant during the time aswel; but after her first visit putting the dads name on green book afterwards she and her family threatens to call the immigration to have the overstayed father deported and she refuses to put his name on child birth line and not let him anywhere near the child not even him knowing the sex of his baby, pls is there any law in the UK that allows a mistreatment and such act of this english family towards the father of child? if not pls advice what can be down father is only 23yr and mother is 20yr they both young and his is first child his been going mentally demented for the past couple of months thanks.

Our Response:
I am very sorry to hear this. Your friend is in a very tricky situation, as any court case as an attempt to resolve the access arrangements would draw attention to your friend being undocumented. Undocumented people face automatic deportation if they have overstayed their visa by 90 days. The only recourse your friend has, would be to suggest the mother of his child attends mediation as a way of trying to resolve this issue. Your friend may also wish to seek some immigration advice, please see link here .
AboutImmigration - 17-Nov-17 @ 9:30 AM
hi making an ednquire about a mate who was here on a tier 4 and overstayed due to change of government in his country and was scared of going back as there was a political crisis at the time, and now overstayed for over 2 years; got in a relationship along the line with a english girl after going through thick and thin together with her fully aware of his status as overstayer they got engaged during the time and she fell pregnant during the time aswel; but after her first visit putting the dads name on green book afterwards she and her family threatens to call the immigration to have the overstayed father deported and she refuses to put his name on child birth line and not let him anywhere near the child not even him knowing the sex of his baby, pls is there any law in the UK that allows a mistreatment and such act of this english family towards the father of child? if not pls advice what can be down father is only 23yr and mother is 20yr they both young and his is first child his been going mentally demented for the past couple of months thanks.
jos - 16-Nov-17 @ 1:48 PM
Curtis - Your Question:
Hello,please im lorty I would like to know if there's a possibility of getting an indefinite I Have overstayed in the UK for five years but I have a partner who is a UK citizen is it possible to be approved.

Our Response:
As an undocumented person, your only recourse would be to seek independent immigration advice regarding this matter, please see link here .
AboutImmigration - 14-Nov-17 @ 11:30 AM
I lived in England from the age of 7 until I was 21. Then I moved back to the United States. We had dual citizenship at that time. Now my daughter wants to go to uni in the UK. Do I still have my British citizenship?
Virginia - 13-Nov-17 @ 9:03 PM
oyi - Your Question:
I overstayed for about 9 month in UK but l came back on my own I was refused for overstay l don't know if is ban but is almost 3yrs na

Our Response:
As a rule overstayers are genrally subject to a two year, five year or 10 year re-entry ban. You would have to enquire via UKVI, please see link here .
AboutImmigration - 13-Nov-17 @ 3:07 PM
Hello,please im lorty I would like to know if there's a possibility of getting an indefinite I Have overstayed in the UK for five years but I have a partner who is a UK citizen is it possible to be approved.
Curtis - 13-Nov-17 @ 1:17 PM
I overstayed for about 9 month in UK but l came back on my own I was refused for overstay l don't know if is ban but is almost 3yrs na
oyi - 11-Nov-17 @ 9:11 AM
Hi. I was overstayer in uk for 2 years , tried to get marry but didnot do, bcoz my FLR O refused and not given right of appeal, I did appeal in high court but 2 years no answer, then I left uk on my own cost. im living in italy .now i have leagle status here. I wana visit my sisters and brother who are citizens of uk, have I chance to get uk visit visa ? I left uk 2013. thanks
jani - 9-Nov-17 @ 11:11 PM
@TJ. Thanks for your answered. As I said that offence occurred on 12/2014,This december should be 3 years but I don’t know why home officewrote to me on the letter”outstanding criminal prosecution “ , Train midland prosecuted me on 1/2015( they sent me a letter and I paid fine that day) , when you said 3 years, you mean after date offence occured OR that date which NCP put my name on their computer system record( maybe they put 5 months ago because of some reasons)?! Also I don’t understand what’s “non custodial” mean? Is there any phone number or email available which I can call you? Thanks
Ara - 9-Nov-17 @ 11:16 AM
@Ara applications for Indefinite Leave to Remain will be refused if you commit any offence which appears on your record within the last 3 years. You can apply after 3 years of your non custodial offence was recorded.
TJ. - 7-Nov-17 @ 4:46 PM
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