Immigration Corner: I overstayed and want to return

Dear Mr Bassie,

In the past I visited the United Kingdom and overstayed. I would like to know how overstaying beyond what was granted on my visa, will be treated by the United Kingdom authorities, if I plan to visit the United Kingdom again. There seems to be some ambiguity and any information would be greatly appreciated.

Thanks.

- HW

Dear HW,

With respect to any refusal on which entry clearance or leave to enter the United Kingdom is decided, paragraphs A320 and 320(7B) of the Immigration Rules of the United Kingdom sets out the general grounds for such refusal.

A person seeking to return to the United Kingdom may be refused entry because he/she is the subject of a one year, two-year, five-year, or 10-year re-entry ban. Persons may be the subject of a re-entry ban where they have previously breached the United Kingdom's immigration laws by: overstaying; breaching a condition attached to their leave; being an illegal entrant; and/or using deception in an application for entry clearance, leave to enter or remain, whether that application was successful or not.

period of overstaying

When the authorities are determining whether a re-entry ban applies by virtue of paragraph 320(7B), the period of overstaying must be calculated in accordance with the interpretation of overstaying under paragraph 6 of the Immigration Rules.

The terms 'overstayed' or 'overstaying' means the applicant has stayed in the United Kingdom beyond the latest of the time limit attached to the last period of leave granted or beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971; or the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application, provided the application was submitted before the time limit attached to the last period of leave expired.

Usually one-year bans are given for when there has been voluntary departure at a person's own expense. Illegal entrants, those who breach a condition attached to their leave, and those who overstay their lawful leave by more than 90 days, who leave the United Kingdom voluntarily at their own expense are ordinarily subject to a mandatory one year re-entry ban unless they are applying for entry clearance as a family member, under Appendix FM of the immigration rules, or they were under 18 at the time of their most recent breach, as set out at paragraphs A320 and 320(7B) of the Immigration Rules.

'Voluntary departure'

With respect to 'Voluntary departure at the Secretary of State's expense', individuals who breach the United Kingdom immigration laws and leave the United Kingdom voluntarily at the expense, either directly or indirectly, of the secretary of state are subject to two or five year re-entry bans. This includes those who leave the United Kingdom via an Assisted Voluntary Return (AVR) programme or otherwise voluntarily.

Please be aware that not all persons who leave the United Kingdom voluntarily at the secretary of state's expense will necessarily depart via an AVR programme. Some persons may express a desire to leave the United Kingdom, but departure via an AVR programme is not pursued because they do not wish to return via this route, are not eligible to return via this route or because their application has been rejected or excluded.

It should be noted that those who leave the United Kingdom voluntarily, but their flight ticket is purchased by the secretary of state, that is 'self check-in' removals for example, are also recorded as voluntary departures at the United Kingdom authorities expense.

- John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a fellow of the Chartered Institute of Arbitrators, a chartered arbitrator and a member of the Immigration Law Practitioners Association (UK). Email: lawbassie@yahoo.com