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An overstayer is a person who has a visa (limited leave to enter or remain) in the United Kingdom, but neither left after such visa has expired nor asked for his or her leave (visa) to be extended.

Overstaying is an offence contrary to the Immigration Act 1971. If an individual has overstayed his or her current permission to stay in the United Kingdom (visa/leave) for more than 28 days, a further application to regularise an immigration status will be automatically refused.

Can Human Rights help you?

The United Kingdom is a signatory to the European Convention on Human Rights. It has an obligation to follow the court rulings on human rights.

The most common Article which an individual relies on is Article 8 – The Right to Respect for Private and Family Life. This applies in the following cases:

  1. If you have lived in for a long time in the UK and have established private life by integrating into the UK system.
  2. If you have a family here (i.e. parent, siblings), or you have been married to a settled person (or British Citizen/European Citizen) or have a child (or children) with a settled person (British Citizen or European Citizen).

Each case is different and therefore the result of your application may differ from “similar” cases.

Your marriage with a European citizen

If you overstayed your current permission to stay in the UK, you may be granted a visa or permission to stay in the UK if you are married to a European citizen, who is a worker, self-employed, self-sufficient, job-seeker or student (in other words an EEA national who has been exercising Treaty Rights in the UK).

When you decide to register your marriage with the local registry office, it is very likely that it will refer your proposed marriage to the Secretary of State if you are not able to provide evidence of your legal status in the UK.

It is also quite common for the Home Office to investigate whether such marriage is a sham. In this instance, a couple should expect that the Home Office will contact them and invite for an interview to find out the real intention of your marriage. Such investigation might be time-consuming and will require providing evidence of your intention to marry. Thus, a couple will be able to register their marriage and receive their marriage certificate when the Home Office is fully satisfied that such marriage is honest and genuine. Afterwards, a person facing immigration difficulties might be a successful candidate in regularising her/his status in Britain.

Your marriage with a British citizen

Similarly to the previous category, you may regularise your status in the UK and remain here legally if you marry a British citizen.

It is important to be aware of one additional requirement for a British citizen who wishes to marry a foreigner (non-EEA European citizen) who is an overstayer. Your British spouse has to show that he/she earns not less than £18,600 per annum (before tax). If a prospective spouse has children born outside the UK, a British citizen would be liable to provide a support for them as well. In fact, the Home Office would require a British national to provide earnings of £18,600 plus £2,400 for each child to be brought to the UK.

In both cases, the presence of human rights (family relationship/children who were born in the UK and who has a British national parent) is an important factor, which can help you obtain a decision in your favour. Of course, each case is different and requires individual approach by applying relevant Immigration Rules and legislation.

You have a child with a British Citizen/European citizen or someone settled in the UK

If you have a child who is a British National, it is likely that you can apply to regularise your stay in the UK.

Will I be deported?

The fact that you are an overstayer does not necessarily mean you will be automatically deported. As you can see above, there are ways to regularise your stay in the UK, but depending on which factors that apply your case.

DEPORTATION ORDER red Rubber Stamp over a white background.

Contact us to assess and review your case. Alternatively, follow us and leave a message on our Facebook page: Able Law, or book your initial  FREE 30 phone consultation with the immigration lawyer. 

Disclaimer: This article does not constitute legal advice. If you wish to discuss your case or find out more about your options, please contact us by email: solicitors@ablelaw.co.uk, leave a message on 07450831714 or call us on 02085448011.


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