Regulations for Overstayers and Illegal Entrants and the Process of Regularizing Stay in UK


The government of the United Kingdom has set forth certain regulations and procedures for any person who wishes to enter the country. These rules of immigration with regards to the UK are based off of laws that have passed over the years such as the Immigration Act of 1971, the Boarders, Citizenship and Immigration Act of 2009, the Humans Right Act of 1998, the British Nationality Act of 1981 and many others. These laws, which are currently in effect, exist in the form of a compilation known as the Immigration Rules of the UK. These rules consist of procedures and regulations with regards to all visa policies of all visa categories (such as a work visa, tier 1 business visa, UK investor visa, entrepreneur immigration UK, UK graduate entrepreneur visa etc.) that are currently being implemented in the UK. The visa categories of the UK have been separated into the Tier 1 visa, Tier 2 visa, Tier 4 visa and the Tier 5 visa, each of which is defined for a different purpose that any person might be coming to the UK for. Within each visa type, several different subcategories exist for several scenarios under which the person might be coming for.

The rules and procedures exist to guide the applicant applying for a visa and assist him or her for travel to the UK. If the person is to defy the rules set for his/her visa, such as overstaying on the period the UK allowed him or her, or say entered the country illegally without applying for a visa, strict action can be taken against the person such as detention and removal.

Who is termed as overstayer in UK?

Any person who was given a time span to stay in the United Kingdom on his/her visa, and abused it by overstaying the legal limit will be termed an overstayer. Applicants can legally apply to extend their period of stay through the proper channels, but if they stay illegally, they will subject to detention and forceful removal from the country. However, a legal limit of 28 days is granted by the UK to any person who overstays their time in the country.

The government implemented a rule from the 1st of October, 2012 that any person who stays in the country for more than 28 days will not have his/her application for a further extension approved. Furthermore, as per Section 24(1) (b) (i) of the Immigration Act of 1971, any person found guilty of abusing their stay in the UK will face a fine or imprisonment for a maximum period of six months. Later, another act was inserted into the Immigration Act which states that any person who is aware of the fact that their legal limit to stay has expired, and continues to abuse this by overstaying will be charged by the government with a criminal offence.

Another law which covers the topic of an overstayer is defined in the British Nationality Act which states that any person who breaches their legal limit to stay in the United Kingdom will not be considered for naturalization or permanent settlement in the country.

According to the Immigration and Asylum Act of 1999, as stated in Section 10(1), any person (who is not a permanently settled citizen) found guilty of overstaying in the United Kingdom can be forcefully removed from the country under instructions of an Immigration Officer (IO). The case of overstaying according to this act can be defined in three scenarios:

  • Any person who was granted a limited leave to stay in the United Kingdom and did not abide by the period granted in the limited leave.
  • Any deceptive act used by a person to overstay his/her legal time limit in the country.
  • The person is the family member of a person who has been ordered to be removed from the country under Section 10.

Who is an illegal entrant in UK?

Any person who intentionally enters the United Kingdom without legal permission and uses acts of deception to stay in the country is in defiance of the Immigration laws of the country and subject to removal from the country. This definition is lawfully defined in Section 33(1) of the Immigration Act of 1971. If the person falls under any of the following scenarios, then he/she will be considered an illegal entrant under UK law. These scenarios are listed as:

  • The person entered without any form of legal permission from the government of the UK.
  • The entry of the person in question was in defiance of an order of deportation.
  • The person used deceptive means to gain legal permission to stay in the United Kingdom. Such as submitting false documents to the Home Office or an immigration officer.
  • No proof can be produced by the person of lawful entry into the country.
  • If the person entered the UK from the Channel Islands, Republic of Ireland or the Isle of Man without legal permission.
  • The person entering the UK is a seaman deserter.

Illegal entrants, under the scenario of entering the country by providing false documents, will be subject to a criminal offence where they can be fined or sent to prison for a maximum period of 2 years, as laid out in the Immigration Act of 1971.

The UK government grants the Home Office permission to forcefully and lawfully remove persons under Paragraphs 8, 9 and 10 of Schedule 2 of the Immigration Act of 1971.

What is capita and its relation to the immigration process of the UK?

In October 2012, the Home Office hired a private company called Capita to handle future cases of overstayers and illegal entrants in the UK. Capita acts to track down any persons accused of overstaying or entering the country illegally. Capita acts to locate these persons, apprehend them, and turn them over to the Home Office where an Immigration Officer further deals with them. The Migration Refusal Pool (MRP) contains a list of persons in the United Kingdom who were denied an extension on their current time limit to stay in the country and were denied, and acts to apprehend such persons.

Capita acts by first sending out a text message or a letter by post, or to personally visit the last address where the person accused of overstaying was found. If any person in UK receives a text from Capita, it is advised that they seek independent legal counsel before taking any further steps.

For legal counsel or advice in this regard, you can get in touch with the law society by visiting their web address www.lawsociety.org.uk/find-a-solicitor/. You can also contact the Office of the Immigration Services Commissioner (OISC) by visiting their web address home.oisc.gov.uk/how_to_find_a_regulated_immigration_adviser/adviser_finder/finder.aspx as they will help you locate a solicitor who practices law in cases related to Immigration and Asylum.

How can you regularize or legalize your stay in the country? 

Any person who is currently under the radar of the police for overstay or illegal entry, or is being tracked by Capita should immediately go through the process of regularizing or legalizing stay in the country. The government can still grant the person stay depending on his/her case so no one should consider their case to be hopeless. This includes the cases of any person who has stayed over the legal limit that was allotted to them on their visa.

The Home Office’s guide for Immigration Officers assigned a case of an Overstayer

Several categories of visas exist to enter the UK (such as a work visa, business visa, tier 1 business visa, UK investor visa, UK graduate entrepreneur visa etc.). This topic is only applicable on applicants, who applied to further stay in the United Kingdom after the 9th of July, 2012. It covers applications of the following areas:

  • Any person who might have applied for a work or study visa (under the normal system or the points based system).
  • A person who applied on the visitor visa.
  • A person who entered through the long residency route.
  • Any person who was discharged from Her Majesty’s (HM) forces.

It is to be noted that this guidance mentions applicants who have applied to further stay in the UK to not be overstaying in the country for a period of more than twenty eight days. The twenty eight day period is calculated as:

  • The latest of the last day of their permission to stay in the country.
  • The end period of the extended time the person was provided under the Immigration Act of 1971.
  • The date prescribed to the applicant when he/she received the note of invalidity.

Note that the immigration officer only considers applications for extension that are submitted after the 28 days period if the case is extremely genuine. The criteria for such cases is extremely high and only exceptional cases are entertained. These exceptional cases can include:

  • The person who overstayed for more than 28 days to be suffering from a serious illness. Note that a medical certificate must be submitted as proof of the illness.
  • The person overstayed due to postal or travel delays
  • Any circumstances that might have arisen upon the person that were of an exceptional nature and were out of the control of the applicant
  • If the person is not at fault and the Home Office has misplaced or delayed the documents resulting in his/her stay
  • If in the exceptional event of a fire, a flood or a theft having resulted in the applicant losing his documents

If in the case that the above mentioned scenarios happen to apply to any person, he/she will be granted further stay in the country even if they overstayed for a period greater than 28 days. The Home Office will sign off on this grant of stay with conditions as with any normal document of stay. The person will find the letter of stay to having a clearly mentioned case of his/her explaining why a stay was granted.

However, even if case that further stay is granted by the Home Office, applicants should be aware of the fact that the United Kingdom still views the person as an overstayer. This also does mean that they will be given a further extension on their previous application.

The applicant can qualify to regularize his/her stay in the UK if the following grounds or provisions are met:

  • If it can be proved with evidence to the Home Office that his/her dismissal from the country will result in the person’s right to family right being violated.
  • If significant evidence can provided of the applicant being a family member of a European Economic Area (EEA) or a Swiss national.
  • Any person who qualifies for asylum cannot be removed from the United Kingdom even if he/she is an overstayer.
  • If the person can prove to having his/her human rights violated under the Humans Right Act of 1998

Note that the decision taken by the Home Office is subject to grounds of appeal and the person who has overstayed but finds grounds to not be dismissed can take up the matter in an appeals court.

Applicants can view the fee for this process at www.ukba.homeoffice.gov.uk/aboutus/fees/. Note that the fee is applicable to be paid in pound sterling.