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Overstaying explained…

Rakesh Prajapati offers some insight into overstaying.

An over-stayer is a person who has stayed in the UK beyond the expiry of their leave. Overstaying is a criminal offence under section 24 of the Immigration Act 1971. A person found guilty may be punished with a fine or imprisonment for up to six months.

There are variety of reasons for overstaying your leave such as not renewing, family reasons, medical reasons, lost an appeal etc. However, you still could regularise your status without having to leave the UK. All in accordance with UK Immigration Law and the Human Rights Act 1998.

These cases can be complex and rely upon case law of senior courts such as Upper Tribunal IAC, Court of Appeal, High Court, House of Lords, Supreme Court, and European Court of Justice. As the narratives are extensively complex, it usually requires presentation by a qualified lawyer.

Here are some routes which may give you an idea of how to regularise your status without having to leave the UK. All these routes require extensive preparation and understanding of supportive case law. The list is not exhaustive and each category depends on its own merit:

7 Year Rule

If your child is under the age of 18 and has lived in the UK for seven years continuously they can regularise yours and their status.

Immigrants who are 18-25 years old without a valid leave

If you are aged between 18-25 and have lived in the UK half your life, you can regularise your status.

Immigrants who have lived less than 20 years in the UK without a valid leave

If you have lived in the UK for less than 20 years and do not have any ties to your home county, you man regularise your status.

Immigrants Settlement, and who have lived 20 years in the UK without a valid leave

If you have not got valid leave but have lived in the UK for 20 years, you can regularise your immigration status.

Upon approval of this route, you are granted an initial two and a half years further leave to remain. You must renew this status until you have lived here for a further 10 years. Then you may apply for permanent settlement.

The settlement rule of 14 years was abolished on 9 July 2012.

Marriage or relationship with a European citizen

If are married to or a partner of a European citizen you may qualify to remain in the UK.

Divorce from a European citizen

You can also retain your rights following the divorce of a European citizen. You must have been married to a European national for three or more years and the both have worked in the UK at least 12 months.

Marriage to a British citizen

If you are married to a British citizen, you may qualify to remain in the UK under exceptional circumstances.

If your child is a British citizen and without a valid leave

As the parent of a British citizen, you may qualify to remain in the UK in the best interests of the child.

Human Rights Cases

Human rights cases can be complex. In most cases you have to both qualify and meet a high threshold in order to be granted some sort of status.

Human rights: Exceptional and compelling circumstances including medical grounds

You can be granted leave to remain in the UK under Article 3 and Article 8. The thresholds for medical grounds need to be met and this route is only available in exceptional cases.

If you need any advice on this area then get in touch by email or call on 0207 242 1666.

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