Lessons from an overstayer: the uniquely life-ruining potential of missing your visa deadline in the UK
Before the pandemic, Sally ran a pub with her unmarried British partner, Kevin. She had been living and working in the UK with valid visas for several years.
Sally's permission to stay would shortly be expiring, and she had a job offer lined up with a new restaurant doing what she did best - rustling up tasty vegan dishes - and which was due to sponsor her under the Skilled Worker route as a chef.
Then the pandemic struck.
The lockdown closed the pub, depriving Sally and Kevin of their income. Their savings - put aside for the visa application - evaporated.
With the offer of sponsorship withdrawn, and her visa expiring in the teeth of the first lockdown, Sally tried to navigate the Home Office's regularly shifting pandemic guidance about what she needed to do.
(The Home Office Covid guidance has been updated 1546 times since it was issued at the beginning of the pandemic.)
Sally wrote to her MP before the expiry of her visa asking what to do. Her MP wrote to the Home Office about the case, and received a response several months later - long after she had become an overstayer - advising her to "read the Home Office website carefully".
Sally did not know at that stage that she could have made an application based on living with Kevin - her British partner - for a 2-year period, believing that it would be necessary to get married in order to be eligible for a family visa.
In addition to overstaying, being made redundant from her role at (and within 3 days evicted from) the pub at which she and Kevin were live-in managers, Sally was diagnosed with a serious mental health disorder during 2020, and spent some time in a crisis house.
If that wasn't enough, the treatment Kevin had been receiving for an old injury was unavailable during the pandemic. On bad days, he was reduced to crawling around their home on all fours.
Overstayer
As Sally had overstayed her immigration permission, she no longer met the immigration rules to remain as Kevin's partner without having to show "exceptional circumstances".
In other words, in order to successfully apply from within the UK, Sally would need to show that refusal of the decision would result in "unjustifiably harsh" circumstances for either her or Kevin.
The alternative would be for Sally to go back to her home country, where she hadn't lived for 20 years, to apply from there.
Fee Waiver application
Other than Kevin's receipt of Personal Independence Payments for his disability, they didn't have the £2,500 required to make an application, having spent their savings surviving the first lockdown.
Sally initially contacted Edgewater Legal for help with an application for a fee waiver. If successful, it would mean that she would not need to pay the application fee, or the Immigration Health Surcharge.
The fee waiver application is a document-heavy process, requiring a very large amount of up-to-date financial information and evidence about an applicant, and any person that lives in their household.
Given everything required, including various confirmations from government departments where benefits are involved, the application here took some time - about 6 months - to prepare.
The Home Office granted the fee waiver. This enabled Sally and Kevin to make an unmarried partner application for free, without incurring around £2,500 in Home Office visa charges.
Unmarried partner application
We helped Sally and Kevin make their unmarried partner application.
We argued that, because Sally met all of the requirements of the rules (other than the Immigration Status Requirement, because of her overstay), she should not have to return to her country simply for the formality of her having to make an application from abroad.
This is based on the Chikwamba principle, outlined in the House of Lords case of the same name.
We argued that given Kevin's disability and Sally's mental health issues, and their interdependence, and the circumstances of the overstay (during a global pandemic and nationwide lockdown!), it was "unjustifiably harsh" to expect Sally to return to her home country, where separation (even for a short period) would have created such hardship for them both.
And the waiting times for entry clearance applications meant that it would not be a short period: likely 9-12 months before any application from abroad would be approved and she would be able to re-enter.
In these circumstances, the Home Office would surely agree that expecting Sally to apply from her home country would be disproportionate, right?
In its decision about 6 months later, the Home Office did not accept this argument, and suggested - as far as it possible to tell - that there remained a "public interest" in Sally making an application from her home country.
It was accepted in the decision that Sally otherwise met all of the other requirements of the partner route, other than being in the wrong place.
Appeal
We lodged an appeal against the decision to the First Tier Tribunal (Immigration and Asylum Chamber) on human rights grounds.
We relied on Younas (section 117B (6)(b); Chikwamba; Zambrano) Pakistan [[2020] UKUT 129 (IAC)](http://www.bailii.org/uk/cases/UKUT/IAC/2020/129.html), arguing that there was no public interest in Sally going home to apply in the circumstances, and if there was it would surely be disproportionate to expect her to do so.
Given the difficulties Kevin had getting around - if they occasionally had money leftover from his PIP, they would hire a wheelchair from the Red Cross to go for walks - and Sally's anxiety, we requested a remote hearing, where Sally and Kevin could give evidence from their own home.
This was refused by the tribunal.
However, when we all arrived at the hearing centre for the in-person hearing - listed around 8 months after the refusal decision - we were surprised to find the judge was being patched in remotely.
Not only that but, in a colossal waste of everyone's time, nobody from Home Office appeared at the hearing which then had to be adjourned as a result.
At the adjourned hearing, 5 months later, the tribunal had accepted that we should all attend remotely. And at that hearing, the presiding judge allowed the appeal on the spot.
The Home Office didn't appeal and granted Sally permission to stay for a further 2 ½ years.
Lessons
What lessons can we learn from the rubble of this process? Most are obvious, but bear repeating.
Don't overstay
Given the foregoing, this may seem obvious.
But overstaying your visa in the UK has uniquely life-ruining potential, and lots of people don't appreciate how difficult life can get if you don't have permission to remain in the country.
This is why the proposed Home Office move to digital-status, replacing Biometric Resident Permits with (what is currently) a glitchy online system, is causing so much concern within the immigration legal community.
If you have overstayed, it can be a long road back
Regularising your stay will usually require at least an application to the Home Office, and then possibly also an appeal in the (not unlikely) event that a caseworker disagrees that you meet an exception.
It took 2 years from our instruction to resolution of Sally's immigration issues: a relatively straightforward case of an overstayer making a regularisation application with a strong case, and where there were no onward appeals after the First Tier Tribunal determination.
That was two years of Sally being unable to work, being prevented from renting in the private rental sector, being at risk of having her bank account closed etc.
These cases take time, and the wait times are getting longer.
Overstaying cases are likely to be complicated
Overstaying will usually mean that a person does not meet the standard requirements of an in-country immigration application.
Applicants will therefore be arguing that they meet the terms of exceptions, which are themselves based on human rights law principles, and where there is often wide disagreement between Home Office and applicant lawyers about their meaning and how they should be applied.
These cases also throw up other random legal points where lawyers can be helpful.
For example, the Home Office argued that Sally was unlikely to have received a job offer to move into the Skilled Worker route before the pandemic - saying that she was lying, effectively - because her prospective employer did not have a sponsor licence.
However, this is rubbish: most companies apply for a sponsor licence only after they have identified an individual they wish to sponsor. Indeed, the Home Office has historically discouraged companies from applying pre-emptively for sponsor licences.
We know this because we make these applications for companies regularly.
...but good luck getting legal aid
This case would have benefitted from an expert medical assessment given Sally's mental health issues, and the centrality of these issues to her argument about how she might struggle in the event of even a temporary return.
But, without legal aid, funding for expert reports of the quality required to make a difference are beyond the means of most clients.
With the help of the Hackney Migrant Centre we applied for legal aid Exceptional Case Funding for Sally, and which was granted.
However, the issue was not only the preparedness of the Legal Aid Agency to pay for the work, but the lack of lawyers available to take an appeal paid at those rates, and their variable quality.
The calculation for our client during the appeal was to stick with us - we acted pro bono in all of our assistance to Sally - without a medical report, or to roll the dice that a legal aid lawyer would be willing to pick up the case.
The legal aid lawyer would then need to agree that a medical report was required, persuade a court that it should grant an extension of time to get a report, then actually obtain a medical report, and for this to make a difference worth all of that risk.
Sally stuck with us and, in the end, it worked out. But in other cases, a medical report may have made a material difference.
This is why pro bono representation is not a substitute for a properly funded legal aid system.
Sally is now doing great: back in full-time employment and running a community cafe.
Names and other details in this article have been changed to protect the identities of the individuals concerned