(Updated Blog on 10 April 2017:https://ukimmigrationjusticewatch.com/2017/04/10/know-the-procedure-brand-new-home-office-guidance-on-validity-and-rejection-of-leave-to-remain-applications/?iframe=true&theme_preview=true
The importance of ensuring that an application sent to the home office is accepted as timely and validly submitted is to ensure not only that an applicant with leave to remain continues to benefit from remaining legally here whilst that application is under consideration but also that they are able to continue working during that time if they fall in a permitted category.
Even those applicants with no leave to remain seeking to regularise their immigration status may need urgent “cover” of a validly submitted application where they are at risk of imminent removal.
There are various issues that need to be considered when an application for leave to remain is being considered for submission to the home office – simply submitting an expired passport with an Article 8 claim is now no longer acceptable and as such way before such an affected applicant considers submitting a formal application to the home office, steps would need to be taken to ensure that a valid document in this regards is submitted with the application. This is to avoid a possible rejection of the application as only a short time is given by the home office to rectify such a deficiency.
When compared to applicants seeking to apply under the immigration rules, EEA nationals and non- EEA family members applicants, may be in a somewhat “ better” position especially when it comes to completion of home office application forms. There is no need to apply for documentation using one of the EEA applications forms. The Home Office can accept a letter with supportive evidence asking to be considered under European law. The Home Office must not reject an application because an application form has not been used or fully completed. Therefore, although applicants may feel that it is necessary to complete the very lengthy EEA application forms, there is no obligation to do so. What is however required is that valid national documents be provided with an application unless this is due to circumstances beyond the applicant’s control and in such circumstances the home office may accept alternative evidence of identity and nationality. Further the relevant application fee must accompany an EEA application. In addition, from 6 April 2015, a non-EEA applicant applying for a residence card, derivative residence card or permanent residence card will have to enrol their biometrics in order to be issued a document confirming their right to reside in the UK. The home office however in practice appear to be unreasonably withholding the issue of certificates of applications pending the enrolment of the biometrics despite the parent Directive stating that a certificate of application for the residence card shall be issued immediately.
The Immigration Rules provide:
“Variation of leave to enter or remain in the United Kingdom
“31. Under Section 3(3) of the 1971 Act a limited leave to enter or remain in the United Kingdom may be varied by extending or restricting its duration, by adding, varying or revoking conditions or by removing the time limit (where upon any condition attached to the leave ceases to apply). When leave to enter or remain is varied an entry is to be made in the applicant’s passport or travel document (and his registration certificate where appropriate) or the decision may be made known in writing in some other appropriate way”.
The most relevant Home Office Guidance policy as regards considerations of validity of home office applications is, “Specified application forms and procedures – version 16.0 Published for Home Office staff on 7 April 2015”.
|The guidance is stated to be based on the Immigration Rules, Paragraphs A34-34K and the Immigration (Health Charge) Order 2015.|
There is a clarification within the Guidance regarding the consequences of not complying with the current specified requirements. The Guidance also directs home office caseworkers how they can contact an applicant, in writing, to give the applicant a single opportunity to correct any omission or error they have made which could make their application invalid.
THE RELEVANT IMMIGRATION RULES AND THE REQUIREMENTS
- PARAGRAPH A34: ON LINE APPLICATION FORMS:
Paragraph A34 of the immigration rules provides that an application for leave to remain in the United Kingdom under the Rules must be made either by completing the relevant online application process in accordance with paragraph A34 (iii) or by using the specified application form in accordance with paragraphs 34A to 34D. The relevant online application process means the application process accessible via the visas and immigration pages of the gov.uk website and identified there as relevant for applications for leave to remain for the immigration category under which the applicant wishes to apply. Specified, in relation to the relevant online application process means specified in the online guidance accompanying that process.
Paragraph A34 (iii) requires that when the application is made via the relevant online application process:
(a) any specified fee in connection with the application must be paid in accordance with the method specified;
(b) if the online application process requires the applicant to provide biometric information that information must be provided as specified;
(c) if the online application process requires supporting documents to be submitted by post then any such documents specified as mandatory must be submitted in the specified manner within 15 working days of submission of the online application;
(d) if the online application process requires the applicant to make an appointment to attend a public enquiry office of the United Kingdom Border Agency the applicant must, within 45 working days of submission of the online application, make and attend that appointment; and comply with any specified requirements in relation to the provision of biometric information and documents specified as mandatory; and
(e) the requirements of paragraph 34BB must be met.
|Migrants, and their dependants, applying under Tier 2 and Tier 5 of the points-based system (PBS) can submit an online application for leave to remain through the Home Office website. They can only use a paper application form if the option is available on the Home Office website. Migrants in the UK as Tier 4 students, and their dependants, can apply and pay their application fee online. An application on a specified online form must meet the requirements contained in paragraph A34 of the Immigration Rules and the Immigration (Health Charge) Order 2015.|
For valid online applications under the standard route, the applicant must send any supporting documents specified ‘mandatory’ to the Home Office within 15 working days from the date the application is submitted – the mandatory documents are:
· passport and/or travel document
· passport-style photographs
· biometric residence permit (if owned)
· police registration certification (if applicable)
· attend an appointment to provide biometric information if asked to do so – they must provide the biometric information in the timescale set out in the request
Upon receipt of the application, the home office carry out validation checks. They check that the mandatory documents were submitted within 15 working of the application being submitted. If they have not, they are required to contact the applicant, in writing, to give the applicant a single opportunity to correct any omission or error they have made which could make their application invalid giving them 10 business days to respond to your request. Where the applicant has responded, the home office will invite the applicant to provide biometric information.
If any of the requirements are not met and the applicant has not responded to the home office request to correct any omission or error they have made, the home office must reject the application as invalid.
For a valid online application under the premium route, the home office check that the applicant has attended an appointment at the premium service centre, sent any supporting documents specified as mandatory by the Home Office, and provide biometric information, if required, within 45 working days from the date the application was submitted on line. If any of the requirements are not met and the applicant has not responded to a home office request to correct any omission or error they have made, the home office must reject the application as invalid.
The fee payable by the applicant is the one in place on the date the online application is submitted. The home office must not reject the application as invalid if the fee changes between either the mandatory documents being received or the applicant attending an appointment.
- PARAGRAPH 34: WHEN AN APPLICATION FORM IS SPECIFIED
An application form is specified when:
- it is posted on the visas and immigration pages of the gov.uk website,
- it is marked on the form that it is a specified form for the purpose of the immigration rules,
- it comes into force on the date specified on the form and/or in any accompanying announcement.
If a person with indefinite leave for example applies for a no time limit (NTL) endorsement on form SET(O), the home office will reject it as invalid as the correct specified form for this purpose is form NTL.
Paragraph 34I of the Immigration Rules allows applicants to make a valid application on an old version of a form if the form they used was permitted for the purpose being applied for; the form is the one in use immediately before the introduction of the current version of the form and the application was made up to 21 days after the introduction of the new or revised form. The Home Office are required to consider these applications in the same way as if they had been made on the newly specified form. The application must still meet the other requirements of paragraph 34A and the Immigration (Health Change) Order 2015. These requirements include paying the correct fee specified by the fee regulations on the day the application is made, not the fee stated on the old version of the form. If an applicant has omitted to send all the mandatory documents, the home office must contact them to give them a single opportunity to correct any omission or error they have made which could make their application invalid. They must give them 10 business days to respond to the request.
The relevant Guidance set out above also provides that where an applicant applies for further discretionary leave on form HPDL or DL the home office must write to the applicant to explain that they need to vary their application because they have applied on the wrong form. The applicant must be given 28 calendar days to make an application on the correct FLR(O) form and submit the current fee. The Home Office are required to make it clear that if a response is not received within 28 calendar days then 3C leave will lapse and the applicant will automatically become an overstayer and be liable for removal.
- PARAGRAPH 34A: REQUIREMENTS THAT AN APPLICATION OR CLAIM MUST ALSO COMPLY WITH WHEN AN APPLICATION FORM IS SPECIFIED
Where an application form is specified, the application or claim must also comply with the following requirements:
(i) Subject to paragraph A34, the application or claim must be made using the specified form,
(ii) any specified fee in connection with the application or claim must be paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes, as applicable,
(iii) any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified,
(iv) if the application form and/or related guidance notes require the applicant to provide biometric information, such information must be provided as specified,
(v) an appointment for the purposes stated in subparagraph (iv) must be made and must take place by the dates specified in any subsequent notification by the Secretary of State following receipt of the application, or as agreed by the Secretary of State,
(vi) where the application or claim is made by post or courier, or submitted in person:
-the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes,
-those photographs must be in the same format specified as mandatory in the application form and/or related guidance notes, and
-the form must be signed by the applicant, and where applicable, the applicant’s spouse, civil partner, same-sex partner or unmarried partner, save that where the applicant is under the age of eighteen, the form may be signed by the parent or legal guardian of the applicant on his behalf, and
-the requirements of paragraph 34BB must be met.
Paragraph 34C of the Immigration Rules, provides that where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, or where an application for leave to remain in the United Kingdom is made by completing the relevant online application process, and does not comply with the requirements of paragraph A34(iii), the following applies:
- (a) Subject to sub-paragraph (b), the application will be invalid and will not be considered. Notice of invalidity will be given in writing and deemed to be received on the date it is given, except where it is sent by post, in which case it will be deemed to be received on the second day after it was posted excluding any day which is not a business day, unless the contrary is proved.
- (b) The decision maker may contact the applicant or their representative in writing and give the applicant a single opportunity to correct any omission or error which renders the application invalid, save for failure to enrol their biometric information. The amended application and/or any requested documents must be received at the address specified in the request within 10 business days of the date on which the request was sent.
The Application Fee:
An applicant must pay any specified fee by one of the methods specified in the form and/or guidance notes.
The application is invalid and must be rejected if it is paid by any other method; any specified fee is not paid in full or the applicant has been given 10 business days to correct this error but they have failed to respond to a home office request or correct the error sufficiently.
The case of Basnet (validity of application – respondent)  UKUT 00113(IAC) provides in its headnote:
- If the respondent asserts that an application was not accompanied by a fee, and so was not valid, the respondent has the onus of proof.
- The respondent’s system of processing payments with postal applications risks falling into procedural unfairness, unless other measures are adopted.
- When notices of appeal raise issues about payment of the fee and, consequently, the validity of the application and the appeal, Duty Judges of the First-tier Tribunal should issue directions to the respondent to provide information to determine whether an application was accompanied by the fee”.
The recent case of Mitchell ( Basnet revisited)  UKUT 562 (IAC) notified on 8 October 2014 provides in its headnote:
“1. The decision of the Tribunal in Basnet v SSHD  UKUT 113 (IAC) does not put the burden of proof on the Secretary of State where the application was, on its face, insufficiently completed.
- The evidence shows that the payment pages are retained for 18 months. Thus, within that period, any question of the reason for failure to obtain payment can be investigated, although the reasons for declining a payment are available only to the bank account holder, not the Secretary of State. In the light of this, a more nuanced approach to the burden of proof may be needed”.
The relevant Home Office Guidance policy as regards a fee waiver application for Forms FLR(FP) and FLR(O) is, “Fee Waiver For FLR(FP) & FLR(O) Forms, “April 2015”, Chapter 1a: applications for fee waiver and refunds.
Applicants who qualify for a fee waiver will have their leave to remain application considered against the requirements of the Immigration Rules in Appendix FM (family life) and/or paragraph 276ADE(1) (private life) without paying a fee.
The relevant fee waiver application form is , “Appendix 1 FLR(FP) / FLR(O) Request for Fee Waiver in order to exercise ECHR rights”
Applicants who can apply for a fee waiver:
- Applications for the 10-year partner, parent or private life route;
- Applications on the basis of other ECHR (non-Article 8) rights
Applicants who cannot apply for a fee waiver:
- FLR(O) applications on non-human rights grounds;
- Applications for the 5-year partner or parent route;
- Applications for indefinite leave to remain
The NHS Health Surcharge:
As from 6 April 2015, an applicant, subject to immigration control, must pay a health surcharge as a precondition of their application, unless they are exempt, if they are applying for either limited entry clearance for more than 6 months or limited leave to remain in the UK.
Applicants who have paid the surcharge, or satisfied an exemption can access NHS care to the same extent as a UK permanent resident.
The surcharge will be refunded if an application for leave to enter or remain is refused, rejected or the application is withdrawn.
Online applications are covered by paragraph A34 of the Immigration Rules and the Immigration (Health Charge) Order 2015.
Some applicants are exempt from paying the health surcharge. These include but are not limited to, those seeking asylum and, humanitarian protection.
Mandatory Sections within the application form:
An applicant must fully complete all mandatory sections of the application form. They must answer every question and provide all the information specified in the section.
If an applicant has not sent all the mandatory documents, the home office must contact them, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. The home office must give an applicant 10 business days to respond to their request. An application must not be rejected if an applicant fails to complete non-mandatory sections of the application form.
The home office can use discretion and accept the application as valid if a mandatory section of the form is not completed but the applicant provides the required information elsewhere in the application.
If an application form specifies biographical information is required, the applicant must provide the specified information. Application forms for leave to remain specify the ‘applicant’s details’ section as mandatory because the application is also one for a biometric information residence permit (BRP). The biometric information regulations require an applicant to provide their personal data.
An applicant must provide photographs with their application unless there are exceptional reasons for not doing so.
Applicants must provide the mandatory number of photographs for each applicant with all applications on specified forms. The photographs must meet the specified format requirements. The Home office are however required to accept the application as valid if the applicant provides one photograph of each applicant that meets the mandatory formatting requirements of the application form. The Home Office do not need to request another photograph.
The Home Office must accept an application as valid if an applicant cannot provide photographs because they are temporarily incapable of doing so because of a serious illness or accident. The applicant must provide written medical evidence and the home office must still request photographs from the applicant as soon as they are capable of providing them.
For children aged 5years and under, the photograph must show a clear image that is a true likeness of the child. They do not need to have a neutral expression or to look directly at the camera but they must face forward and meet all other format requirements. Babies under one year old do not need to have their eyes open even though this is preferable. All other format requirements must be met.
If photographs are not provided, or are not in the specified mandatory format, the application must be rejected as invalid under the power conferred by paragraph 34C of the Immigration Rules. If an applicant has not provided photographs or they are not in the correct format the home office must contact them, in writing, to give them a single opportunity to correct this, and any other, omission or error that would make their application invalid. The home office must give the applicant 10 business days to respond to the request.
Documents Specified as mandatory:
|If the form and/or guidance notes state the applicant must provide certain documents with the application, the home office will reject the application as invalid if this requirement is not met. This is unless the applicant, for example, is unable to provide their passport for one of the reasons listed in the passport section of the application form or unless the applicant can provide a good reason beyond their control, why an original, valid passport, travel document or (unless the applicant is a Points Based System Migrant) national identity card cannot be provided. For example, where it has been permanently lost and there is no functioning national government to issue a replacement.
If an applicant has not sent all the mandatory documents, the Home Office must contact them or their representative, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. An applicant be must given 10 business days to respond to the request.
Signing form or completing confirmation box:
|If an applicant submits an application by post, in person or by courier they must sign the form and get the signature of their partner, if appropriate. This requirement is specified in the section containing the declaration(s).|
|If the main applicant is under 18, their parent or legal guardian may sign the form instead of the applicant.
If an applicant has not signed the form the home office must contact them, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. The Home Office is also required to give the applicant 10 business days to respond to the home office request. If they do not respond to the request the application is invalid.
The Home Office must not treat applications as invalid if the signature on the application form does not match the one in the passport and they have no concerns the applicant has not signed the form themselves.
|The Home Office must not treat the application as invalid if applicant signs the form but does not date it. The home office do not need to return the form to the applicant for them to date their signature.|
|The Home office are required to use discretion and accept an application as valid if the applicant provides written medical evidence of a disability showing they are unable to sign the form because of a serious illness or accident.
As regards on -line forms, migrants and their dependants, applying under Tier 2 and Tier 5 of the points-based system (PBS) can submit an online application for leave to remain through the Home Office website. They can only use a paper application form if the option is available on the Home Office website. Migrants in the UK as Tier 4 students, and their dependants, can apply and pay their application fee online.
The applicant, or an immigration adviser acting on their behalf, must complete the confirmation box to confirm the information given is true and accurate.
If an applicant has not signed the form the home office must contact them, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. The home office must give the applicant 10 business days to respond to the request. If they do not respond to home office request the application is invalid.
- PARAGRAPH 34B: POSTAL OR COURIER SERVICE AT A SPECIFIED ADDRESS OR PREMIUM SERVICE CENTRE
Where an application form is specified, it must be sent by prepaid post to the Home Office at the address specified on the application form for such purposes, or submitted in person at a Home Office premium service centre. Application types permitted in person at a Home Office premium service centre are listed on the visa and immigration pages of the gov.uk website.
An application may be sent by courier to the Home Office at the address specified on the application form for such purposes if it is an application for:
- limited or indefinite leave to remain as a sole representative, retired person of independent means or as a Tier 1 Migrant or Tier 2 Migrant;
- limited leave to remain for work permit employment, as a seasonal agricultural worker, for the purpose of employment under the Sectors-Based Scheme.
- Indefinite leave to remain as a businessperson, investor or innovator, or
- limited leave to remain as a Tier 5 (Temporary Worker) Migrant.
An applicant may submit an application online where this option is available on the visas and immigration pages of the gov.uk website
An application may not be sent by pre-paid post, and must be made online, if it is an application for a Tier 2, Tier 4 or Tier 5 (Temporary Worker) sponsorship licence.
- PARAGRAPH 34BB: VALID PASSPORT, TRAVEL DOCUMENT OR NATIONAL IDENTITY CARD REQUIRED WITH APPLICATION UNLESS EXCEPTIONS APPLY
(1) Where an application for limited or indefinite leave to remain in the United Kingdom is made by completing the relevant online application process, the supporting documents submitted in accordance with paragraph A34(iii)(c) must be accompanied by an original, valid passport, travel document or (unless the applicant is a Points Based System Migrant) national identity card issued to the applicant and to any dependant included in the application, unless sub-paragraph (3) applies.
(2) Where an application for limited or indefinite leave to remain in the United Kingdom is made, for which an application form is specified, the application must be accompanied by an original, valid passport, travel document or (unless the applicant is a Points Based System Migrant) national identity card issued to the applicant and to any dependant included in the application, unless sub-paragraph (3) applies.
(3) This sub-paragraph applies where:
(i) the application is made:
- for limited leave to enable access to public funds pending an application under paragraph 289A of, or under Part 6 of Appendix Armed Forces or section DVILR of Appendix FM to, these Rules; or
- by a stateless person or the family member of a stateless person under Part 14 of these Rules; or
- by a person in the UK with refugee status or humanitarian protection; or
(ii) the passport, travel document or national identity card of the applicant or (as the case may be) the dependant is held by the Home Office at the date of application; or
(iii) the Secretary of State considers that there is a good reason beyond the control of the applicant or (as the case may be) the dependant, given in or with the application, why an original, valid passport, travel document or (unless the applicant is a Points Based System Migrant) national identity card cannot be provided, e.g. where it has been retained by an employer or other person in circumstances which have led to the applicant being the subject of a positive conclusive grounds decision made by a competent authority under the National Referral Mechanism, or where it has been permanently lost and there is no functioning national government to issue a replacement.
(4) Where sub-paragraph (3)(iii) applies, the Secretary of State may require the person to provide alternative satisfactory evidence of his or her identity and nationality.
(5) Where sub-paragraph (3)(ii) or (iii) applies to the applicant or (as the case may be) to a dependant included in the application, the requirement in sub-paragraph (1) or (as the case may be) (2) continues to apply to any other person included in the application.
Passport, travel document or national identity card:
For an application to be valid under paragraph 34BB of the Immigration Rules, it is mandatory for the applicant and any dependant(s) included in the application, to provide one of the following as evidence of their identity unless these documents are not available for reasons beyond their control:
- an original, valid passport
- a valid travel document
- a valid national identity card (PBS migrants are not permitted to use this)
If a document is lost or stolen, it should have been reported to the relevant authorities and replaced before an application is made. If there are reasons, beyond the applicant or dependant’s control, why the document cannot be replaced the Home Office may accept another document as proof of their identity and nationality.
If the applicant and/or dependants cannot provide their passport, a travel document or a national identity card, then they must provide an acceptable explanation. If it has been lost or stolen, they must provide their crime reference number and reasons why they have not been able to provide a replacement document.
The home office are required to consider each of the applicants (including any dependants) individually when determining if they have an acceptable reason not to provide the specified evidence. It might be possible for the dependants to provide or obtain a document even when the main applicant cannot and vice versa.
|Reasons beyond the applicant or any dependant (s) control may include if there is no longer a functioning national authority to approach and provide a new document, or because there is no Embassy or consular service in the UK;
· if there is a national authority to apply for a document but they have run out of documents, or they have made their application for a replacement document but the issuing authority cannot provide a document in time for the applicant to make their valid application before their leave expires;
· if the applicant cannot obtain a document for reasons of national or personal security;
· if the national authority is unreasonable and refuses to provide a document, for example if the national authority will only provide a passport if they apply in person but there is no provision to apply in person in the UK or if the national authority puts unreasonable barriers in place based on unsubstantiated claims
If the document is already with the Home Office, an applicant must provide information stating why the Home Office holds the passport, travel document or national identity card.
If the applicant has not enclosed a current, valid passport, travel document or national identity card, then they must provide alternative satisfactory evidence of identity which must include full name, date of birth and nationality.
A reasonable alternative could include, but is not limited to, a:
- PARAGRAPH 34DL:WHEN TO INCLUDE DEPENDANTS IN AN APPLICATION FORM OR CLAIM
Where the main applicant wishes to include applications or claims by any members of his family as his dependants on his own application form, the applications or claims of the dependants must meet the set out requirements or they will be invalid and will not be considered. The application form must expressly permit the applications or claims of dependants to be included, and such dependants must be:
- the spouse, civil partner, unmarried or same-sex partner of the main applicant; and/or
- children of the main applicant aged under 18; and/or
- where permitted by the Rules for the immigration category under which the applicant wishes to apply, any dependants of the main applicant aged 18 or over.
|Paragraph 34D of the Immigration Rules therefore allows applications by dependants to be included on specified application forms if they are related to the main applicant as their spouse, civil partner, unmarried partner, same-sex partner or child under the age of 18. This only applies if the form allows such dependant applications to be included.|
|If the applicant includes dependants other than those specified in paragraph 34D in an application, the home office must treat the application(s) of the dependants as invalid. This does not invalidate the application of the main applicant or the applications of any dependants who can be included on the form, as long as the application meets all of the other mandatory requirements. The home office do not need to use the 10 business day correction opportunity for dependants not specified in 34D who have been included on the application.|
- PARAGRAPH 34J: EFFECT OF REQUEST FOR RETURN OF PASSPORT BEFORE A DECISION IS MADE
Where a person whose application or claim for leave to remain is being considered, requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn on the date that request is received by the Home Office.
In all cases, the home office must ask the person to confirm their request for the return of their passport by letter. The home office can only return the passport if they receive a fax or email if the request is urgent. The home office will treat the application as withdrawn regardless of whether or not the applicant later travels. The home office will not refund the specified fee and the applicant has no right of appeal against the withdrawal as there will not have been a decision to refuse to vary leave.
- PARAGRAPH 34K:INAPPLICABLITY OF PARAGRAGH 34J
Paragraph 34J does not apply to an applicant who is applying as a Tier 2 Migrant or a Tier 5 Migrant and whose application is supported by a Certificate of Sponsorship from a Premium Sponsor.
-Invalid or Void Application:
An application is invalid if it does not meet the specified validity criteria set out in paragraphs A34-34 of the Immigration Rules or the Immigration (Health Charge) Order 2015.
An application is void when the Home Office cannot process it because the application is inappropriate. For example, an application for limited leave to remain from a person who already has indefinite leave to remain or leave to remain submitted by a person outside the UK.
-Indefinite Leave To Remain Applications and 28days:
Applicants who need to meet a qualifying period for indefinite leave must not apply for further leave until they are within 28 days of completing the relevant qualifying period. This allows them to meet any required qualification periods for the continuous leave requirement. This is however not a mandatory requirement of paragraph 34 of the Immigration Rules and the home office must not reject an application as invalid if the applicant submits it more than 28 days before they have completed the relevant qualifying period.
It might appear at first blush that there is a considerable measure of some discretion before rejecting an application. The main Guidance as referred to above however clarifies that on 6 November 2014 the Immigration Rules introduced a correction opportunity for invalid applications, giving applicants 10 business days to correct errors or omissions which would result in their application being invalid. The home office conclude from this that this means that the need for discretion in validation cases is now unlikely. The exercise of any discretion is stated to be confined to the most exceptional circumstances, and must be authorised by an officer of at least senior executive officer (SEO) level (deputy chief caseworker or equivalent).
If the application was however received more than three months ago and does not meet the specified form requirements, the home office must use discretion and accept it as valid. This is because it is considered that the applicant may be unfairly disadvantaged if the home office reject their application after this length of time.
The Guidance also states that the home office must not automatically use discretion and accept an application or claim as valid if a fee exemption has been claimed. In this case they must first decide if the application is fee exempt before making a decision on whether the application can be validated. The home office must not automatically accept such an application as valid where it was received more than three months ago, if after they have considered the claim for exemption they find that a fee must be paid. In this case, the home office must contact the applicant, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. The applicant must be given 10 business days to respond to the request. If the applicant does not respond to the request then the home office must reject the application because the specified fee has not been paid, even if it was made over three months ago. If the home office find that the application is fee exempt but does not meet other specified form requirements, they may use discretion about those requirements if the application was received over three months ago.
-Section 3C and 3D Leave:
An applicant with existing leave to remain may submit their extension application just a few days prior to the expiry of that leave. If the application is invalidated and returned unconsidered after expiry of this leave, then this may affect the person’s lawful basis of stay in the UK such that they will no longer have the cover of Section 3 C leave continuing from which they may benefit from.
If an applicant did make an in-time application and the application is subsequently refused, the migrant’s leave will have been extended by virtue of section 3C of the Immigration Act 1971.
Section 3C(2) of the Immigration Act 1971 (As Amended) automatically extends a person’s leave if either:
- they apply for further leave before their current leave expires, while their application is still outstanding and they do not withdraw the application before a decision is made
- an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 for an in-time application for the variation of leave could be brought or is pending.
This leave lapses if the applicant leaves the UK.
Section 3C(4) of the 1971 Act however prevents the applicant from making a new application for a variation of leave while they have 3C leave. This means if an applicant with 3C leave submits a new application, the home office can automatically consider this to be void.
However, section 3C(5) of the 1971 Act allows an applicant with 3C leave to vary their application at any time before it is decided. This means they can ask for their application to be considered on different grounds to their original application.
If a person has 3C leave after the home office have made a decision on their application and an appeal is pending or can be brought, they can submit additional grounds of appeal up to the time the appeal is heard, if they have permission from the Asylum and Immigration Tribunal.
Section 3D(2) of the Immigration Act 1971 (as amended) automatically extends a person’s leave when their leave to enter or remain is either curtailed or revoked, and an appeal could be brought or is pending. As with section 3C leave, a person cannot make a new application for variation of leave while they have section 3D leave, but they can vary their leave
Where an application is returned as rejected within the 28 day period of overstaying from the last day of their latest grant of leave to enter or remain, the applicant may still seek to re-submit an application during that period.
The starting point is that an applicant who is applying for leave to remain must not have remained in the UK for longer than 28 calendar days after the expiry of their original grant of leave, on the date of their application.
The 28 day period of overstaying is calculated from the latest of:
- the last day of their latest grant of leave to enter or remain, or
- the end of any extension of their leave under sections 3C or 3D of the Immigration Act 1971.
A current home office guidance is , “Applications from overstayers (non family routes) – version 6.0 Valid from 20 October 2014”.
|The guidance is for caseworkers who consider applications for further leave to remain made on or after 9 July 2012 by an applicant without valid leave in certain routes. The routes it covers are, all work and study, including the points-based system, visitors, long residency, UK ancestry, and most discharged Her Majesty’s (HM) forces.|
|Where the Home Office are refusing an application because of overstaying they must consider any exceptional circumstances that stopped the applicant applying within the 28 days. The ‘exceptional circumstances’ threshold is high, could include that the migrant or their representative could not submit an application on time because of:
-serious illness (supported by the appropriate medical documentation);
-travel or postal delays. Or
They are not able to provide the necessary documents because of exceptional or unavoidable circumstances beyond the applicant’s control. For example:
-The Home Office has lost or delayed returning travel documents.
-The applicant is having problems replacing lost documents as a result of theft, fire or flood. They must provide evidence to show the date of loss and the date they requested replacement documents.
If the home office caseworker decides to use discretion it must be authorised by a senior caseworker, at senior executive officer (SEO) grade or above. In these circumstances the home office must grant leave under the rules, with the same duration and conditions as a normal grant of leave under the rules attached to it. The decision letter must be clear that leave is being granted because the applicant met all other requirements of the route and the home office have accepted there were exceptional circumstances which prevented the applicant from applying within the 28 day period.
The submission of an application within the 28 day period of overstaying does not mean the migrant’s previous leave is either re-instated or extended. Therefore an applicant without valid leave at the point they submit their application continues to be an overstayer from the point their leave expired and throughout the period their application is pending.
As the applicant has no leave during the period their application is pending they have no permission to work in the UK.
-Fee Waiver Applications:
Although applicants in the permitted categories may apply for a fee waiver, they take the risk that where they do not qualify for a fee waiver, they will have their application rejected as invalid for non-payment of the required fee- the most affected are those who had leave to remain upon submission of their application but the rejection followed after expiry of their leave.
-No Right of Appeal in some circumstances:
When an applicant ‘s application has been rejected and they have become an overstayer, although they may seek to re-submit another application, should that application be refused, they may not obtain their appeal rights.
There are therefore several possible ways via which the Home Office can seek to invalidate an applicant’s application. These measures are being incrementally imposed over time, however with a little more effort and time, it is possible for applicants to avoid invalidation of an application.