What Paragraph 39E of the Immigration Rules is all about and how to use it in practice?
To those who do not practice UK Immigration on a regular basis, the Immigration Rules might look complex, confusing and, somewhat, restrictive on what applicants can or cannot do in the United Kingdom. For this reason, it does not come as a surprise when applicants attempt a UK visa application themselves and fail on technicalities or simply because they were not aware of the requirements attached to the chosen visa category. Thankfully, there is a provision of the Immigration Rules which allows the applicants to not only not became overstayers in the UK but also to make another attempt at a visa application within the UK following the refusal.
If applying for a visa within the UK, on the date of application, the applicants must not have remained in the UK after the expiry of their current visa, in other words, must not be overstayers. On 24 November 2016 the Immigration Rules were amended to abolish the 28 day grace period and paragraph 39E was introduced, which allows for the current period of overstaying to be disregarded.
The paragraph 39E reads as follows:
“39E. This paragraph 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; 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(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
(3) the period overstaying was between 24 January and 31 August 2020; or
(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, the period of overstaying was between 1 July 2020 and 31 January 2021.”
Overstaying and Section 3(c) leave
There are two aspects of paragraph 39E: overstaying and Section 3(c) leave of the Immigration Act 1971.
Firstly, the period of overstaying will be disregarded if there is a “good reason” beyond the control of the applicant or their representative as to why the applicant’s visa application was not submitted before their UK visa expired, provided that the application is made within 14 days of the expiry of leave.
Example:
Candice is a Chinese national, who is working in the UK. She was admitted to a hospital, which prevented her from making an in-time application to extend her Skilled Worker visa. She submitted her extension visa application to the Home Office straight after being discharged from the hospital, which was also within 14 days of the expiry of her Skilled Worker visa. She provided a letter from her doctor in support of her visa application. The delay in submitting her visa application in time was beyond Candice’s control, therefore, the Home Office is highly likely to accept that there was a “good reason” for the delayed visa application.
Secondly, the period of overstaying will be disregarded where a visa application, which was submitted before the expiry of leave, was refused and a new visa application was made 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.
Example:
Joey is a Chinese national. He is present in the UK under the Innovator visa. He made an in-time visa application within the UK to switch to a Skilled Worker visa, however, it was refused by the Home Office because the sponsoring company assigned him an incorrect type of Certificate of Sponsorship (“COS”).
The sponsoring company then applied for a correct type of COS and assigned it to Joey once allocated by the Home Office. Joey submitted a fresh application to the Home Office within 14 days of the date of the refusal of his previous Skilled Worker visa application. His new application is granted.
Another aspect of paragraph 39E is Section 3(c) leave of the Immigration Act 1971. The purpose of this section is to prevent an applicant, who makes an in-time application within the UK, from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.
Example:
From the previous example, Joey’s leave was extended by Section 3(c) until his initial Skilled Worker visa application was refused, which prevented him from becoming an overstayer.
If Joey decided to challenge the Home Office’s decision in a way of an Administrative Review, his Section 3(c) leave would have been extended until his Administrative Review is concluded.
It is important to note that Section 3(c) leave cannot be relied on twice. This was concluded earlier this year by the Court of Appeal in the case of Kalsi & Ors v Secretary of State for the Home Department.
Consequences of overstaying
Overstaying is a breach of UK Immigration law, and, in essence, a criminal offence, which can carry long-term consequences. The overstayers can be banned from re-entering the UK for a period of up to ten years in some circumstances.
If someone becomes an overstayer in the UK, they will be exposed to the UK hostile environment, which means to have restrictions on renting accommodation in the UK, open a bank account or even access medical treatment.
Conclusion
It is advisable to avoid overstaying in the UK. Immediate actions must be taken if someone is at risk of becoming an overstayer or has already overstayed their leave, and paragraph 39E can be a solution.
If you are concerned about your immigration status in the United Kingdom, please do not hesitate to contact our Immigration Team for guidance.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.