Visa expired. Discovered while applying for job extension.

[kindastuck]

Hi, I've made a very big mistake. My year long contract was due for renewal but my BRP had been issued for 11 months, something that I didn't realise/remember after a year. My employer did not notice either and it was only when the job extension was being sorted out that we realised, which was after the 28 day period you have to apply for an extension.

My employer has terminated my current job and has kindly offered me a new job at the same post. I have filled out their certificate of sponsorship but they will not apply for the CoS till they/I find out whether it should be an in-country application or an out-of-country application.

I understand that since the 28 days have passed I should leave the country within 90 days and apply from my home country. However there is a cooling off period of a year that could be applicable in this case which I would understandably like to avoid, since I never intended to leave the country or my job, and this was supposed to have been a straightforward extension.

My question would be, is there any way I can apply for the new job from here within the UK? I can get letters from my workplace stating that neither I nor they were aware of the lapse. If I were to get the in-country certificate of sponsorship I could apply for the in-person one day visa service and explain things face to face?

Or would it be better to leave the country, apply for the visa from abroad and explain in my supporting documents what happened and pray they don't apply the one year cooling off period?

[CR001]

When did your visa expire?

Which Tier 2 visa category was it?

Why do you think you have 90 days within which to leave after visa expiry? Link to this information from HO???

You are an overstayer and on top of this, the rules changed in November last year and there is no 28 day 'grace period' anymore, it is now only 14 days.

It is and always will be the applicants responsibility to check the visa validity and not breach their visas.

12 month cooling off will unfortunately apply to you.

[vinny]

Unfortunately, the 90 days period is moot, if you are also subject to the cooling off period.

[vinny]

You may have a chance, if your BRP's short period of validity was in error, i.e. not in accordance with 345HC nor 345HE.

[Frontier Mole]

There is nothing preventing you from applying for an extension visa even after your expiry date of your current visa.
Tier 2 guidance is silent on the matter so get your application in ASAP.
If it is refused you do not have a right of appeal and in the interim you can not work.
Do not provide excuse letters etc, it will not add anything.

If you leave the U.K. you will be subject to the 12 month cooling off period and no amount of excuses will change that.

[vinny]

There is nothing preventing you from applying for an extension visa even after your expiry date of your current visa.

There is this:

(p) The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

[Frontier Mole]

The grace period reduction from 28 to 14 days has no impact on the ability to make an out of time application. All the new rule does is make it harder to utilise the concession to overstayers to regularise their immigration status.
Overstaying does not invoke a mandatory refusal under the general rules.

So in this case the OP can apply for an extension and as long as they meet the T2 guidance and do not fall for refusal under the general rules there is no reason to believe they would be refused their visa.

The reason I said that the excuse letter will have no impact is because they are seeking to apply outside the grace period with no possibility of it being considered as if within the grace period rules. So a pointless exercise constructing a letter.

It has been a long held frustration that overstayers can move into PBS routes without having to return to their home country first. The reality of the position is that there are very few overstayers moving to PBS routes now. The virtual wholesale closure of the majority of the private colleges under Tier 4 reforms was the single biggest cause of overstayers to tier 2. This has all but dried up.

[vinny]

Doesn't the word "must" in 245HD(p) make the refusal for overstayers, subject to 39E, manadatory, unless there is discretion?