Human Rights and Overstayers

What is an overstayer?

An overstayer is a person who has remained in the UK without a valid visa or permission to stay.

Although there are serious consequences in being an overstayer, this does not preclude a person from making an application to regularise their stay in the UK.

The various applications available to an overstayer under family and private life in the UK.

What does family life consist of?

Family life consists of any relationship established with members of your family including your unmarried partner, spouse, civil partner or children under the age of 18. These rights are protected under Article 8 ECHR.

What does private life consist of?

Your private life could consist of charity work, involvement with your community, friends you have made whilst in the UK, studies or even work. Private life is also protected under Article 8 ECHR.

Application under family life:

Are you in a relationship with a person who is settled in the UK?

The Immigration Rules allow for applications from those who are in a relationship with a British national or a settled person from within the UK.

However, the applicant is required to demonstrate that they and their partner would be insurmountable obstacles (very significant difficulty) to their life continuing outside of the UK.

Are you in a relationship with an EEA National?

The EEA settlement scheme is a mechanism which is now in place post the Brexit vote. It allows for EU nationals and their partners, children or other family members to make applications to remain in the UK in line and obtain either ‘leave to remain in the UK’ or indefinite leave to remain in the UK.’ 

However, applicants should bear in mind that this scheme will not be in place for a prolonged period of time. As it currently stands, the deadline to make an application under this scheme is 30 June 2021.

Do you have children who have been in the UK for 7 years or who are British citizens?

If your child is a British national you can make an application for leave to remain in the UK as a parent.

If the child is in the UK illegally or without leave to remain but they have resided in the UK for seven years, you can make an application to regularise your leave in the UK together with your children. The child however must be under the age of 18 at the date of the application.

Application on the basis of residence in the UK

Application under private life have been in place for many years.

Young people over the age of 18 but under 25 years of age, they can make an application leave to remain in the UK provided that they have lived here for half of their life.

People who have also lived in the UK for over 20 years can also apply despite being overstayer. Under the Immigration Rules, one can make an application for further leave to remain in the UK on the basis of their private life. However, this applications are evidence based and the onus is on the applicant to prove the required documents to support their case.

Immigration Team