Know The Procedure: Brand New Home Office Guidance on Validity and Rejection of Leave to Remain Applications

The Specified Forms and Applications Home Office policy guidance has been replaced in its entirety  by the Applications for leave to remain: validation, variation and withdrawal, guidance published on 6 April 2017. The new guidance describes how home office caseworkers decide whether an application for leave to remain in the UK is valid, and what to do if it is not. It also describes how an applicant can vary and withdraw an application and how to calculate the date of application.

 

My previous blog article based on the previous policy guidance :

 

https://ukimmigrationjusticewatch.com/2015/11/04/home-office-applications-the-very-things-that-are-likely-to-get-an-application-rejected-as-invalid-by-the-home-office/

 

must now be viewed as modified to some extent by the new governing guidance.

 

An application for leave to remain in the UK is valid when the requirements of Paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant:-if the main applicant meets the validation requirements, but a dependent on the same application does not, the main applicant’s application is valid, and the dependant’s application can be rejected as invalid.

 

(1). WHAT IS A VOID APPLICATION

 

An application is void when the Home Office cannot process it. For example:

 

  • an application for limited leave to remain from a person who already has indefinite leave to remain

  • an application for leave to remain as a Tier 4 student from a person who is on 3C leave pending an appeal

  • an application for leave to remain from a person who is outside the UK without continuing leave

 

A dependant’s application where the main applicant withdraws their application or varies their application to a route that does not allow for dependants.

 

Where Home Office records indicate that an applicant for leave to remain who has no valid leave has left the UK, the outstanding application must be voided. The applicant’s passport must be returned to their Embassy. The Home Office Caseworker must retain all documents provided in support of the application and  must notify the applicant of this outcome using ICD.5057 on Doc Gen.

 

(2).THE RELEVANT IMMIGRATION RULES ON VALIDITY OF APPLICATIONS

 

Paragraph 34 of the  Immigration Rules  provides that an application for leave to remain must be made in accordance with sub-paragraphs (1) to(10) as set out below.

 

(a)Specified Application Form:

 

“(1) (a) Subject to paragraph 34(1)(c), the application must be made on an application form which is specified for the immigration category under which the applicant is applying on the date on which the application is made.

(b) An application form is specified when it is posted on the visa and immigration pages of the GOV.UK website.

(c) An application can be made on a previous version of a specified paper application form (and shall be treated as made on a specified form) as long as it is no more than 21 days out of date”.

 

There is a specified form for all types of applications for leave to remain. The application form must be specified for the immigration category under which the applicant is applying.

 

If an applicant submits a form containing pages from more than one version, the Home Office caseworker must check all of the information requirements of the current version are met. If it contains all the information required, they  can accept the application form.

 

If an applicant has not applied on the correct specified form, the Home Office caseworker may write to them telling them the correct form and give them 10 working days to submit that form. If they do not do this,  the caseworker  should normally reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen.

 

If the applicant does respond to the request and complete the correct form, the date of application is the date the earlier incorrect form was submitted.

 

If the applicant includes any dependants on their application form who are not permitted to apply on the same form, the home office caseworker  must write to them and give them 10 days to submit the correct application form. The caseworker must treat the main applicant and any permitted dependants applications as made.

 

If a home office casework receives an application from a main applicant which claims to include dependants but the dependent application forms are missing, they are to input the main applicant details  but  will not add the dependant’s details until they  have written to request the forms within 10 days and their forms are received.

 

(b)Completion of all mandatory sections within the application form:

 

“(2) All mandatory sections of the application form must be completed”.

 

If an applicant has not completed the mandatory sections correctly, the home office caseworker may write to them and give them 10 working days to correct the errors or omissions. If they do not respond correcting all the errors or omissions within 10 days, the caseworker should normally reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen.

 

An application must not be rejected as invalid if an applicant fails to complete non-mandatory sections of the application form.

 

The Home Office caseworker 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. For example:

 

  • an applicant does not enter a required passport number on the form but provides a passport

  • a UK-born dependant does not answer each question in the ‘immigration history’ section of a form

 

(c)The Application Fee:

 

“(3) Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form”.

 

Each applicant must pay any relevant fee for their application in full and according to the process set out on the form.

 

If an applicant has not paid the correct fee, the home office caseworker must write to them and give them 10 working days to rectify their mistake and provide instructions on how to pay the correct fee. If they do not do this,  the caseworker must reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen.

 

Evidence of payment pages are kept for 18 months by the Home Office and so reasons for failure to obtain payment can be investigated by referring to those pages. However; the reasons a payment is declined are only available to the account holder and so it is not always possible for the Home Office to say why a payment was not received, only that it was not paid.

 

From 18 March 2016, new fees regulations allow the Home Office to retain an administration fee when rejecting an application as invalid. This applies to applications submitted on or after 18 March 2016. It applies to all charged in country applications for leave to remain where a fee has been paid but where the application contains errors or is missing information and is therefore rejected as invalid.

 

An administration fee cannot be retained if an application is void, withdrawn (where the home office refund the fee paid) or the applicant has died.

 

Where the fee has been paid but the application is invalid, the caseworker must reject the application and process a refund for the application minus £25 per person included in the application form.

 

If an incorrect fee has been paid and the application is rejected as invalid, an administration fee must be retained against the incorrect fee.

 

No exercise of Discretion:- A home office caseworker must not accept an application or claim as valid if a specified fee is not paid and no corresponding exception or fee waiver is applicable. If an applicant has not paid the specified fee and is not eligible for a discretionary fee waiver,  the caseworker may contact them, in writing, and give them the opportunity to pay the fee within 10 working days.

 

(d)The Immigration Health Surcharge:

 

“(4) Where the applicant is required to pay the Immigration Health Surcharge, this must be paid in accordance with the process set out on the visa and immigration pages of the GOV.UK website”.

 

The Immigration Health Charge (IHC) was introduced on 6 April 2015. All applications submitted on or after this date, including applications to vary those made before 6 April 2015, must include payment of the IHC unless the applicant is exempt.

 

If an applicant applies for entry clearance which will take effect as limited leave for more than 6 months, they are required to pay the IHC as part of their application (unless exempt); they must do so in accordance with the process set out in Pay for UK healthcare as part of their immigration application.

 

Applicants who have paid the IHC (or are exempt from it) can access the NHS.

 

The IHC is refunded to the applicant if an application for leave to enter or remain is:

 

  • refused

  • rejected

  • withdrawn

  • void

 

Those exempt from the IHS include, but are not limited to, those seeking asylum and humanitarian protection. Those applicants who qualify for a fee waiver are also exempt from paying the IHC.

 

If an applicant (including a dependant applicant) has not paid the correct IHC, the home office caseworker may write to them and give them 10 working days to pay correctly. If they do not respond,  the caseworker  should normally reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen.

 

(e)Provision of proof identity:

 

“(5) (a) Subject to paragraph 34(5)(c), the applicant must provide proof of identity as described in 34(5)(b) below and in accordance with the process set out in the application form

(b) Proof of identity for the purpose of this Rule means:

(i) a valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or

(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or

(iii) if the applicant does not have any of the above, a valid travel document.

(c) Proof of identity need not be provided where:

(i) the applicant’s passport, national identity card or travel document is held by the Home Office at the date of application; or

(ii) the applicant’s passport, nationality identity card or travel document has been permanently lost or stolen and there is no functioning national government to issue a replacement; or

(iii) the applicant’s passport, nationality identity card or travel document 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

(iv) the application is 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

(v) the application is made under Part 14 of these Rules for leave as a stateless person or as the family member of a stateless person; or

(vi) the application was made by a person in the UK with refugee leave or humanitarian protection; or

(vii) the applicant provides a good reason beyond their control why they cannot provide proof of their identity”.

 

If the Home Office has the applicant’s proof of identity on the date of application, then the applicant cannot provide it and the home office caseworker must not reject their application as invalid on this basis.

 

If the applicant’s proof of identity has been lost or stolen, the applicant should have contacted the relevant authorities to request a replacement. Where an applicant has not done this and so does not have a replacement or an alternative listed under paragraph 34(5)(b) to submit as part of their application, then the home office caseworker  can ask them to provide the reason why they have not sought to replace their proof of identity.

 

Where the applicant states their proof of identity has been stolen, they must provide a crime reference number with their application.

 

Paragraph 34(6)(c)(vii) of the rules sets out that an applicant can provide a good reason beyond their control why they cannot provide any proof of identity. Reasons may include the following (this list is not exhaustive):

 

  • 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

  • there is a national authority to apply for a document but they have run out of documents

  • the applicant has made an application for a replacement document but the issuing authority was not able to provide it before the application was made

  • the applicant cannot obtain a document for reasons of national or personal security

  • the national authority has unreasonably refused to provide a document, for example: (i) 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, (ii) if the national authority puts unreasonable barriers in place for the applicant

 

If an applicant has not provided proof of identity in the timescale specified on the application form, and no exception applies, the home  office caseworker may write to them and give them 10 working days to provide proof of their identity. If they do not respond,  the caseworker  should normally reject the application as invalid using the approved notice of invalidity template: ICD 4946 on Doc Gen.

 

(f)Alternative evidence of identity:

 

“(6) Where any of paragraph 34(5)(c)(ii)-(vii) applies, the Secretary of State may ask the applicant to provide alternative satisfactory evidence of their identity and nationality”.

 

Paragraph 34(6) of the Rules states that home office caseworkers  can ask the applicant to provide alternative satisfactory evidence of their identity and nationality. For example this could be a:

 

  • birth certificate

  • driving licence

  • national health card

  • national service document

 

(g)Provision of two passport sized photographs:

 

“(7) Two passport sized photographs must be provided in accordance with the requirements set out in the application form and accompanying guidance notes”.

 

The photographs must meet the mandatory format requirements set out in the application form and accompanying guidance.

 

If an applicant has not provided 2 passport photographs in the required format, and none of the exceptions below apply, the home office caseworker may write to them and give them 10 working days to provide the photographs. If they do not respond,  the caseworker  should normally reject the application as invalid.

 

(h)Parental/Guardian written consent required where main applicant under age of 18:

 

“(8) Where the main applicant is under the age of eighteen, their parent or legal guardian must provide written consent to the application”.

 

If the applicant is under the age of 18, and not a dependant on an adult’s application, then their parent or guardian must provide their written consent to the application. This is a mandatory requirement set out in paragraph 34(8) of the rules.

 

If an applicant who is under 18 does not provide this written consent with their application, the home office caseworker may write to them and give them 10 working days to provide it. If they do not respond, the caseworker  should normally reject the application as invalid using the notice of invalidity template ICD 4946 on Doc Gen.

 

(i)Postal or courier service at a specified address or  premium service center:

 

“(9) (a) Where the application is made:

(i) on a paper application form, it must be sent by pre-paid post or courier to the address on the application form or, where permitted, submitted in person at a Home Office premium service centre;

(ii) on-line and the applicant chooses to or is subsequently required to attend an appointment at a place specified by the Home Office as part of the application process, the applicant must make and attend the appointment within 45 business days of submission of the on-line application.

(b) 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”.

 

When applying on a paper version of the form, applicants must send the form to the address on the application form, or, for applications that can be made at a premium service centre, they can take the form with them and submit in person. For information on applications that can be made in person at a premium service centre see: Visa premium service centres. A posted application must be sent by pre-paid post or by courier. The postal address used must be that indicated on the application form.

 

(j)Biometrics information required:

 

“(10) Where the applicant is required to provide their biometric information, this must be provided in accordance with the process set out in the biometric enrolment letter and any subsequent warning letter issued in accordance with the Code of Practice about the sanctions for noncompliance with the biometric registration regulations”.

 

No exercise of Discretion:- a Home office caseworker must not accept an application as valid if the applicant has not provided their biometric information and none of the exceptions apply. The requirement to provide biometrics and the exceptions are included in the Immigration (Biometric Registration) Regulations 2008.

 

(3).WRITING TO APPLICANT GIVING OPPORTUNITY TO CORRECT OMMISSIONS OR ERRORS

 

34A. Subject to paragraph 34B, where an application for leave to remain does not meet the requirements of paragraph 34, it is invalid and will not be considered.

34B. (1) Where an application for leave to remain does not meet the requirements of paragraph 34(1)-(9), the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State.

(2) Where paragraph 34B(1) applies, the error(s) or omission(s) identified must be corrected within 10 working days of the date on which the notification was sent.

(3) Subject to paragraph 34B(4), where an applicant does not comply with paragraph 34B(2), the application is invalid and will not be considered.

(4) The Secretary of State may exercise discretion to treat an invalid application as valid as long as the requirements of paragraph 34(3), (5) and (10) have been met.

(5) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules”.

 

Paragraph 34B sets out that, where an application contains errors and / or omissions, the Secretary of State may write out to an applicant and give them 10 working days to remedy the errors and / or omissions. If an applicant does not respond within 10 working days,  the home office caseworker  should normally reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen.

 

(4).THE RELEVANT IMMIGRATION RULES ON VARIATION OF  APPLICATIONS AND  VALIDITY

 

 “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.

31A. Where a person has arrived in the United Kingdom with leave to enter or remain in the United Kingdom which is in force but was given to him before his arrival, he may apply, on arrival at the port of entry in the United Kingdom, for variation of that leave. An Immigration Officer acting on behalf of the Secretary of State may vary the leave at the port of entry but is not obliged to consider an application for variation made at the port of entry. If an Immigration Officer acting on behalf of the Secretary of State has declined to consider an application for variation of leave at a port of entry but the leave has not been cancelled under paragraph 2A(8) of Schedule 2 to the Immigration Act 1971, the person seeking variation should apply to the Home Office under paragraph 32.

32.DELETED

33.DELETED

33A. Where a person having left the common travel area, has leave to enter or remain in the United Kingdom which remains in force under article 13 of the Immigration (Leave to Enter and Remain) Order 2000., his leave may be varied (including any condition to which it is subject in such form and manner as permitted for the giving of leave to enter. However, the Secretary of State is not obliged to consider an application for variation of leave to enter or remain from a person outside the United Kingdom”.

33B-33G DELETED

A34. DELETED”.

Variation of Applications or Claims for Leave to Remain

34E. If a person wishes to vary the purpose of an application for leave to remain in the United Kingdom, the variation must comply with the requirements of paragraph 34 (as they apply at the date the variation is made) as if the variation were a new application. If it does not, subject to paragraph 34B, the variation will be invalid and will not be considered.

34F. Any valid variation of a leave to remain application will be decided in accordance with the immigration rules in force at the date such variation is made.

Date an application (or variation of an application) for leave to remain is made

34G. For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E) is made is:

(i) where the application form is sent by post by Royal Mail, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or

(ii) where the application is made on a paper application form and is submitted in person, the date on which it is received at a Home Office premium service centre; or

(iii) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or

(iv) where the application is made via the online application process, the date on which the online application is submitted whether or not a subsequent appointment is made at a Home Office premium service centre.

34H-34I DELETED”.

 

An applicant can vary the purpose of an application at any time before a decision on the application is served. Any application submitted where a previous application has not yet been decided is a variation of that previous application – an applicant can only have one application outstanding at any one time.

 

If the applicant wishes to vary the purpose of their application, they must complete the specified form and meet all the requirements of paragraph 34 of the Immigration Rules for the variation to be valid.

 

If an applicant writes to request a variation of an application but does not submit an application form, the home office caseworker should write back to them confirming that they must complete a specified form and tell them which form to use.

 

When an applicant varies their application they do not have to pay an additional fee unless the new application has a higher fee. If this is the case, when the applications are made online, the applicant will have paid 2 fees and the caseworker must refund the difference. If both applications, or the second application, are on paper, the applicant must pay the difference between the original fee and the new higher fee and  the caseworker  should write to them to tell them what the difference is.

 

If an applicant submits an application to vary, but a decision has already been made on the original application, the caseworker  must write to them and tell them that the application will be treated as a new application.

 

(5).RELEVANT IMMIGRATION RULES AND MULTIPLE APPLICATIONS

 

“Multiple Applications

34BB (1) An applicant may only have one outstanding application for leave to remain at a time.

(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application.

(3) Where more than one application for leave to remain is submitted on the same day then subject to sub-paragraph (4), each application will be invalid and will not be considered.

(4) The Secretary of State may give the applicant a single opportunity to withdraw all but one of the applications within 10 working days of the date on which the notification was sent. If all but one of the applications are not withdrawn by the specified date each application will be invalid and will not be considered.

(5) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules”.

 

An applicant cannot submit simultaneous applications; only one form of leave can be granted at any time. If an applicant attempts to submit more than one application on the same day, the home office caseworker must normally write to them to explain that only one application can be decided at a time and to ask them to indicate which application they would like to be considered and which application(s) they would like to withdraw. If they do not respond,  the caseworker must reject all applications as invalid. If they do respond, the caseworker must mark as withdrawn the application they have said they wish to be withdrawn, and return the fee they have paid for that application.

 

(6).RELEVANT IMMIGRATION RULES AND DEPENDANTS

 

Paragraph 34C of the Rules provides:

 

“Dependent applicants applying at the same time as the main applicant

34C. A dependent applicant can be included on a main applicant’s application form where the application form allows the dependant to be included”.

 

(7).RELEVANT IMMIGRATION RULES AND WITHDRAWN APPLICATIONS

 

“34J. 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.

34K. 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”.

 

An applicant can withdraw their application by sending a written request. If the request is ambiguous, the home office caseworker  must confirm the withdrawal request with the applicant. The date of withdrawal is the date the request is received by the Home Office.

 

The case of Qadeer v SSHD clarified that the Secretary of State does not have to agree to the withdrawal of an application but may consider and decide the application even where that might lead to a refusal.  The most common reason to refuse to accept a withdrawal request from an applicant and decide an application is where there is a suspicion that deception has been exercised by the applicant, for example if they have knowingly submitted fraudulent documents.

 

If a person requests the return of their passport to travel outside the common travel area (CTA) before a decision is made on their application for leave to remain, the caseworker  must treat the application as withdrawn on the date that request is received by the Home Office unless an exception applies.

 

The new Guidance provided further information in relation to withdrawal of applications.

 

(8.)TRANSITIONAL ARRANGEMENTS

 

“34Y. Where an application is made no more than 21 days after the date on which a form is specified (within the meaning of paragraph 34) and on a form that was specified immediately prior to the date of the new specification, the application is deemed to have been made on the specified form (and is therefore not to be treated as invalid by reason only of being made on the “wrong” form)”.

 

When applying on a paper form, an applicant must normally use a current version of the paper specified application form. However; where the applicant submits an application on a previous version of an application form, this will be treated as made on a specified form so long as, at the date the application is, the version they use:

 

  • is no more than 21 days out of date

  • was previously specified for the immigration category under which the applicant is applying

 

Paper forms are marked with the version number and the date they are valid from.

 

An application made on a previous version of a specified application form must still meet the other requirements of paragraph 34 of the rules. This includes paying the correct fee specified by the fee regulations on the date of application, not the fee stated on the previous version of the form which may be different.

 

(9).FEE WAIVER APPLICATIONS AND VALIDATION

 

Some applicants can apply for a fee waiver or qualify for a fee exemption. The most common is the fee waiver for particular human rights based applications. The relevant guidance on fee waivers for these applications is: Fee Waiver For FLR(FP) and FLR(O) Forms.

 

If an applicant has made an in time application, that is, before their current leave has expired, and has made an application for a fee waiver at the same time which is rejected, the home office must write to them and give them 10 working days to pay the application fee. If they do not respond within that deadline,  the caseworker  must reject the application for leave as invalid using the notice of invalidity template: ICD 4946 on Doc Gen.

 

If an applicant has made an out of time application accompanied by an application for a fee waiver but they fail to qualify for a fee waiver, the home office caseworker  does not need to write to them to give them 10 working days to pay the fee. Instead, they  must inform the applicant  that their application for leave has been rejected as invalid.

 

CONCLUSION

 

The distinction between the circumstances where a home office caseworker can exercise discretion  is very important as  it is now clear that there are instances where a Home Office caseworker may or must write to an applicant  giving  them,  for example  10working  days to take the necessary  steps to ensure that the application is valid.

 

What is most welcome clarification however  for those  who seek to  timely submit leave to remain applications  and apply for fee waivers,  is the confirmation that  if an applicant has made an in time application, that is, before their current leave has expired, and has made an application for a fee waiver at the same time which is rejected,  the home office must write to them and give them 10 working days to pay the application fee.  The home office can take several weeks to request payment of the fee and as such in addition to the 10working days stipulation, this may give an applicant sufficient time to source and pay the required fee and therefore  avoid becoming an overstayer by a rejection of their application.

 

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