Dear Mr Bassie,

My son entered the UK on a tourist visa and overstayed for three years.

Could you please tell me whether he has any options for staying in the country legally? If he were to leave now, what would be his chances of being able to return?

-H. L.

Dear H.L.,

Your son has overstayed for over three years. I believe you mean from the expiration date of the visa to date. Typically, if you are in the UK without a visa, or, if your visa has expired, then you are considered to be an 'overstayer' and in violation of UK law.

An overstayer may fall into one of three categories. The first is related to those who intended to overstay at the time they entered the UK. The second refers to those who intended to observe the terms of their visa but resulted in overstaying due to a misjudgement or a similar type of error. The third speaks to those who intended to observe the terms of their visa but for some reason were prevented from leaving by circumstances that were beyond their control.

Since October 2002, those that fit into the previously stated categories of overstayers are no longer deported from the UK. These persons that are in violation are normally subjected to administrative removal. This means the person is given a letter that outlines and explains that he/she is required to leave the UK by a certain date. Unlike deportation, there are no restrictions on administrative removal, and it does afford the person the opportunity to apply for re-entry as soon as they reach their country of destination. However, with respect to the person's chances of success in obtaining re-entry this will depend upon several factors that will be considered in determining the outcome of such an application.

Some considerations in determining such an application would be dependent on which category the overstayer fall into. Of equal importance, is how that person handled their overstay violation with the relevant authorities; the person's credibility will be a major consideration. It should be noted that if the person overstays beyond the time given in the letter with respect to Administrative Removal, the situation would be considered to be much more serious.

John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a Supreme Court-appointed mediator and a fellow of the Chartered Institute of Arbitrators. Email: lawbassie@yahoo.com