The recent Court of Appeal judgement in Kalsi & Ors v SSHD [2021] EWC Civ 184 has limited the scope of the 14-day grace period for overstayers set out in paragraph 39E(2) of the Immigration Rules in holding that it cannot be relied on twice.
Paragraph 39E and Kalsi and Ors
It is a general position throughout the Immigration Rules that an applicant must not be in the UK in breach of the immigration laws. The only exception to this is paragraph 39E which allows a 14-day period of overstaying to be disregarded when making a new application.
This exception is particularly important for those seeking or applying for indefinite leave to remain in the UK based on their 10 years of continuous residence in the UK. Such applicants are required to show lawful and continuous residence of 10 years in the UK but for the (now single) 14-day grace period given by Paragraph 39E.
For example, if throughout an applicant’s 10 years lawful and continuous residence in the UK, there was one instance in which an in-time application was refused but the applicant, within 14-days of the refusal submitted another application which resulted in the applicant being granted leave, the period of overstaying between the refusal of the first-in-time and the second application being made will be disregarded as long as it was no longer than 14-days. If, however, the second application was also refused, and once again the applicant makes a new/third application within 14-days of the refusal of the second application, the applicant can no longer expect this second period of overstaying to be disregarded.
This is because the Court of Appeal in Kalsi and Ors has confirmed that paragraph 39E only applies where a new application is made within 14-days of the refusal of a previous application that was made in-time i.e., before an applicant’s leave expiring. In the example given above, the third application would not be made following the refusal of an in-time application. Accordingly, the applicant when making the third application will neither have 3C leave nor the ability to rely on paragraph 39E with respect to the second period of overstaying.
Paragraph 39E and Section 3C leave
It is important not to mix the two; there is often a misconception that because an applicant’s single period of overstaying has been disregarded, the applicant has also retained unbroken Section 3C leave throughout his/hers 10 year’s lawful and continuous residence in the UK.
Paragraph 39E is an exception specifically for overstayers which allows a single 14-day period of overstaying to be disregarded, as demonstrated above. It does not, however, extend an applicant’s Section 3C leave, even if a single period of overstaying has been disregarded by the Home Office.
Section 3C is different, and the purpose of Section 3C leave is to prevent an applicant who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.
If you need help assessing whether you are eligible to apply for indefinite leave to remain based on your long residence in the UK, we have experts who can guide you.