A second bite at the Cherry: Construction of the phrase “in-time” as used in Paragraph 39E (2) of the Immigration Rules
Md Tariq Bin Aziz
21 September 2021
Paragraph 39E enabled overstayers to make an application after the deadline for doing so had expired but only for a limited period. The Court of Appeal confirmed that an application is only “in time” if it is submitted before the date of expiry of the person’s leave to remain (Visa). Immigration application made during visa expiry grace period is not “in time”.
The Court of Appeal has handed down its judgment in Secretary of State for the Home Department v Ali  EWCA Civ 1357.
The Court of Appeal decided a narrow question of construction of the phrase “in-time” for the purposes of paragraph 39E (2) of the Immigration Rules in the context of applications for leave to remain in the United Kingdom. The question arises in relation to the Tier 1 (Entrepreneur) Migrant route but applies equally to many other leave to remain routes where applications for leave are made after the expiry of existing leave.
Where paragraph 39E applies “any current period of overstaying will be disregarded” when deciding whether the requirements that must be satisfied for the particular leave route chosen are satisfied. Paragraph 39E applies in two situations: under subparagraph (1) where the leave application is made within 14 days of expiry of leave and there was good reason why the application could not be made “in-time”; or under subparagraph (2) where the application was made following the refusal of a previous “in-time” application and within a prescribed time period.
The question raised by the appeal before the Court of Appeal is whether “in-time” in paragraph 39E(2) simply means before the expiry of a person’s leave or whether, in a case where the Immigration Rules provide for or permit an application to be made within a period of up to 28 days ( Pre – 24 November 2016) after the expiry of a person’s leave, the additional 28-day period is also in-time for these purposes.
The Court of Appeal ( Lady Justice Simler ,Lord Justice Arnold and Lady Justice Andrews agreed) in Secretary of State for the Home Department v Ali  EWCA Civ 1357, has held that an application made after expiry of a person’s leave to remain is not “in-time” for the purpose of Paragraph 39E(2) of the Immigration Rules even if it is made within the so-called grace period of 28 or 14 days.
Late applications are permitted within tightly defined grace periods. The applicant in this situation to have a second bite of the cherry in terms of making a second application within a grace period (28 or 14 days), but not a third bite if that second application is refused.
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