Have you overstayed your visa?


QUESTION: I have been in the UK for 14 years and am illegal. What can I do to get legal status?

ANSWER: Current law states that if you have been here illegally for 14 years or more, then you should qualify for indefinite leave to remain. You will need to prove that you have been in the UK continuously for 14 years in addition to this the Home Office will consider your personal history in the UK before deciding to grant you Indefinite Leave to Remain.

QUESTION. I have been in the UK for 10 years and have heard that I can apply for Indefinite leave to Remain in the UK, is this correct?

In order to apply for Indefinite Leave to remain in the UK after 10 years (but before 14 years), you must have been in the UK LEGALLY for the entirety of the 10 years. This means you must have held a visa for legal status throughout and never had a break in your visa(s) throughout the 10 years you have been in the UK.

QUESTION. I have overstayed my visa but have since met a British person and we want to get married. How do I get a marriage visa?

A. If you satisfy the marriage visa requirements, then you may wish to consider taking advantage of the concession currently in place (as described above) which is available until 1st October 2008. For further advice, you should contact an accredited firm of Immigration solicitors, who can provide you with accurate advice on your case and the chances of you being successful depending on the facts of your case.

QUESTION. My case has been refused by the Home Office and they won't allow me to stay in the UK. But I do not want to go back to my country. Is there anything I can do try stay here? Is there another application I can try?

A. You may wish to consider making an application for Discretionary Leave to Remain in the UK and argue that returning you to your home country, would violate your Human Rights. Your case will determine which Human Right you want to argue, commonly, Article 8 of the Human Rights Act 1998 which states that individuals have the right to private and family life without interference from the authorities, including the Immigration authorities.

You may also wish to consider making a claim for asylum. It is possible to make a claim for asylum where you have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of your nationality and owing to such fear, is unwilling to return to it. You may be eligible to apply for legal aid when making an asylum claim so you should firstly try to find a firm of solicitors who offer legal aid in Immigration law to assist you.

QUESTION) I'm illegal in England – how can I gain legal status without going back home?

A) Depending on your circumstances and the facts of your case you may eligible to regularise your stay through a Concession which may be applicable to you under the Immigration rules or you may even be able to apply for leave to remain in the UK under the basis of long residency, discretionary grounds, or human rights grounds. You should speak to a solicitor to obtain advice in your case if you have overstayed, as you can be removed from the UK by the Immigration Authorities.

There are situations where people may be afraid to return to their home country through fear of persecution on the basis of their race, religion, nationality, membership of a particular social group or political opinion. If you think this applies to you, you can speak to a solicitor who offers Legal Aid (free government assistance) in Immigration law and who will be able to advise you on how successful your case will be.

QUESTION) I'm in England on a travel visa. Can I obtain a work permit to stay on and how?

A) You must firstly obtain a work permit and this can only be done by a UK-based employer who must make an application to the Home office requesting a work permit for you to work in their organisation. This procedure can take several weeks and the Employer must provide to the Home Office reasons why he needs to take on a foreign  employee rather than a UK/European employee. The criteria is quite strict and therefore it is important that an Employer obtains proper legal advice before beginning the procedure to apply for a work permit. The work permit system is currently going through an overhaul and a new system will be introduced in November 2008.

Please note if you are on a visit visa, you cannot switch to work permit status whilst in the UK. However, if you are not a national of the European Economic Area (EEA), you can apply to switch into work employment without leaving the United Kingdom if you have existing leave as:

– a student who has successfully obtained a degree level qualification at a United Kingdom registered higher or further educational establishment; or
a student nurse, overseas qualified nurse, midwife, postgraduate doctor, postgraduate dentist or trainee general practitioner who has a valid in-country work permit approval for employment as a nurse, doctor or dentist; or
– a Science and Engineering Graduate Scheme or International Graduate Scheme participant; or
a working holidaymaker who has spent more than 12 months in total in the United Kingdom in this capacity and who holds a valid in-country work permit approval for employment in an occupation listed on the UK Border Agency shortage occupations list (PDF 33K opens in a new window); or
– a highly skilled migrant; or
– an innovator; or
– an applicant who is undertaking the PLAB test, a clinical attachment or a dental observation post, who has a valid in-country work permit approval for employment as a doctor or dentist; or
– Fresh Talent: Working in Scotland Scheme participant who holds a valid in-country work permit approval for employment in Scotland.

QUESTION) I'm in England with a visa for Overseas Domestic Worker. I've been told that after a year, if the family I work for stays on, I need to request a work permit on a different basis. How?

A) No, you do not need to request a work permit. As a domestic worker you will initially be given permission to stay in the United Kingdom for a maximum of 12 months. At the end of this 12 month period you can apply to the Home Office to extend your stay in the United Kingdom providing you are still employed as a domestic worker. You should make your application before your permission to stay in the United Kingdom ends.

If your application to extend your stay in the United Kingdom is successful you will be given permission to stay for another 12 months. If you are still working as a domestic worker at the end of the 12 months you will need to make another application to the Home Office to extend your stay in the United Kingdom.

Once you have been continuously employed as a domestic worker in the United Kingdom for five years you can then apply to stay in the United Kingdom permanently. This is called Indefinite Leave to Remain, and will allow you to legally reside in the United Kingdom permanently.

QUESTION) I'm in England legally, but without a work permit (Travel, Overseas Domestic Worker, Student, etc….): can I take on a job for the extent of time my visa covers?

A) This depends on the type of visa you have been granted. Some visas prohibit you from taking employment in the UK, such as a visitors visa. However, other visas allow you to obtain employment but with certain restrictions, such as a student visa. If you are unsure of which visa allows you to work in the UK, you should make enquiries at the British High Commission/Embassy where you are applying, and they should be able to provide you with information/leaflets explaining the different types of visas and what you are allowed to do/not to do once in the UK.

by Raheela Hussain

Principal Solicitor

Greenfields Solicitors

For questions regarding the subject covered in this guide, please visit

Please note that the above article does not relate to nationals of the European Union. The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor.


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