Part 1: How not to fall foul of the new application process and ensure a valid Home Office application

A new Home Office application process is now in operation, although confusingly and inexplicably, it currently also co-exists side by side with the “old” system that was in place prior to 2 November 2018.

Although confusion might initially arise in the next few weeks in relation to the operation of new process, it is very important that as the  process gradually comes into flow, that applicants keep a close and continual eye on UKVI announcements and updates, introduction of relevant new or amended Home Office Policy guidance and most importantly, pay close attention to the contents of the very first page of published paper application forms and accompanying Guidance as regards the circumstances in which paper application forms can continue to be used in the interim.

The operation of the new process will inevitably affect the validity and acceptance of applications.

Part 2 of this post will set out the new Home Office application process and some commentary, whilst for now the Rules and updated Guidance are considered in conjunction of each other as set out below.

 

(1)UPDATED HOME OFFICE GUIDANCE- VALIDITY OF APPLICATIONS

On 30 November 2018, the Home Office published new guidance, Applications for leave to remain: validation, variation and withdrawal, intended to reflect changes which, “ have been made to the guidance to reflect amendments to the rules in October 2018 on the requirements for a valid application and to support the operation of the new application process introducing the UK Visas Citizenship Application Service (UKVCAS) and Support Centres (SSC) in UK Visas and Immigration (UKVI)”.

 

(2)EFFECT OF INVALID APPLICATIONS

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.

Paragraph 34A of the Immigration Rules provides:

“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”.

 

(3) NOTIFICATION OF ONE OPPORTUNITY TO CORRECT ERRORS OR OMMISSIONS

Paragraph 34B of the Rules provides:

“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 within the timescale specified in the notification”.

 

(4)HOW TO ENSURE YOUR APPLICATION IS VALID

 

Application must be made on a specified application form:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

(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”.

Paragraph 34(1) of the rules sets out that the application must be made on a specified application form. There is a specified form for all types of application for leave to remain.

An application form is specified when it is posted on the visa and immigration pages of the GOV.UK website. It may be an online or a paper form. Some application routes have both paper and online forms, some only online and some only paper.

The application form must be specified for the immigration route under which the applicant is applying.

If an applicant has not applied on the correct specified form, Home Office Caseworkers must write to them telling them, or if they are at the SSC inform them in person, to use the correct form (indicating what the correct form is) and give them 10 working days to submit an application on that form. If they do not do this, the Home office should normally reject the application as invalid.

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.

Paragraph 34Y states:

“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 made, the version of the paper form they use:

  • is no more than 21 days out of date
  • was previously specified for the immigration route 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.

 

All mandatory sections of the application form must be completed:

Rule 34 states:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

…………

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

Paragraph 34 of the Rules sets out that all mandatory sections of the application form must be completed. This is only relevant to paper forms as it is not possible to complete an online form without completing the mandatory sections.

If an applicant has not completed the mandatory sections of a paper form correctly, Home Office Caseworkers may write to them using a validation warning template and give them 10 working days to correct the errors or omissions. If the applicant attends a Service and Support Centre, the Caseworker must tell them in person and ask them to either complete the mandatory sections then or return the completed application form by post within 10 working days.

If the applicant does not respond correcting all the errors or omissions within 10 working days, the Caseworker may reject the application as invalid.

The Caseworker can however 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.

 

Requirement to provide full fee payment:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

……………..

(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.”

The online and paper applications explain how to pay the application fee. Each applicant must pay any relevant fee for their application in full and according to the process set out on the form. The fee to be paid is the one in place on the date the application is submitted.

If an applicant has not paid the correct fee, Home Office Caseworkers must write to them and give them 10 working days to rectify their mistake. They must provide instructions on how to pay the correct fee. If the applicant does not do this, the Caseworker must reject the application as invalid.

If the applicant attends a Service and Support Centre, the Caseworker must tell them in person that they have not paid the correct fee and ask them to pay the fee then or return the completed application form and correct fee within 10 working days.

If the correct fee is paid within 10 days the date of application is the date the original application was made.

Home Office Caseworkers do not have discretion to treat an application as valid where the applicant has not paid the correct fee even when the other requirements of Paragraph 34 have been met. Therefore, it is important that Caseworkers give them the opportunity to pay the correct fee.

Retention of an administration fee:- Fees regulations provide for the Home Office to retain an administration fee when rejecting an application as invalid. It applies to all charged in country applications for leave to remain.

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.

An administration fee cannot be retained if an application is void, withdrawn before enrolment of biometrics (where the Home Office refund the fee paid) or the applicant has died.

Paper applications and fee waiver requests:-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. For guidance on fee waivers for these applications see: Fee waiver: Human Rights-based and other specified applications

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘in time’ (before their current leave has expired), and the request for a fee waiver is refused, the Caseworker must write to them by using the validation warning template and give them 10 working days to pay the application fee. If they do not pay the fee within that deadline, the Caseworker must reject the application as invalid. If the fee is paid within 10 working days the application date is the date the paper form was submitted.

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘out of time’ (where the applicant does not have current leave) and the request for a fee waiver is refused, the Caseworker must inform them that the request for a fee waiver has been refused and their application for leave to remain is therefore invalid and has been rejected.

On-line applications and fee waiver requests:- It is not currently possible to request a fee waiver online.

 

Requirement to pay the Immigration Health Charge payment:

Rule 34 states:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

(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), or the ‘immigration health surcharge’ (IHS), 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 IHS unless the applicant is exempt.

If an applicant applies for entry clearance which will take effect as limited leave for more than 6 months, or leave to remain they are required to pay the IHS 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 your immigration application: https://www.gov.uk/healthcare-immigration-application/pay

The IHS is refunded if an application for leave to enter or remain is:

  • refused
  • rejected
  • withdrawn
  • void

Those applicants who qualify for a fee waiver are also exempt from paying the HIS.

If an applicant (including a dependant applicant) has not paid the correct IHS, the 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.

 

Requirement to provide proof of identity:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

……………

(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 paragraph 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.

(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 sets out that an applicant must provide, in order of preference:

  • a valid passport
  • a valid national identity card – this option is not available for PBS applicants
  • their most recent passport – this is the last one they held if no longer valid
  • their most recent national identity card – this is the last one they held if no longer valid
  • a valid travel document – this means a document, other than a passport or nationality identity card, which has been issued by the government of the UK or another state and which enables travel from one country to another

A passport, national identity card or travel document will not be valid if it:

  • has been cancelled
  • has expired
  • was not issued by the government or authority by which it purports to have been issued
  • has been altered in some way

The exceptions to the requirement to provide proof of identity are set out in paragraph 34 of the rule.

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

Paragraph 34(5)(c) of the Rules sets out that an applicant can provide a good reason beyond their control why they cannot provide any proof of identity.

Paragraph 34(6) of the Rules states that the Caseworker may ask the applicant to provide alternative satisfactory evidence of their identity and nationality. For example, this could be a combination of:

  • birth certificate
  • driving licence
  • national health card
  • national service document

If an applicant has not provided proof of identity, and no exception applies, the Caseworker may write to them by using the validation warning template and give them 10 working days to provide proof of identity. If they do not do so, the Caseworker should normally reject the application as invalid.

Requests for the return of the applicant’s passport to travel outside the common travel area (CTA):- 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. This is set out in paragraph 34J of the Immigration Rules.

The CTA includes the:

  • UK • Republic of Ireland
  • Channel Islands
  • Isle of Man

In all cases, Home Office Caseworkers must ask the person to confirm their request for the return of their passport in writing including email. They must treat the application as withdrawn regardless of whether or not the applicant later leaves the CTA. If biometrics have already been submitted the Caseworker must not refund the fee.

If a person whose passport has been returned to them travels outside the CTA the Caseworker must treat their application as withdrawn.

Where the Home Office has retained a person’s passport, the Caseworker must not treat an application as withdrawn if the person requests the return of their passport for purposes other than travel or for travel within the CTA. For example to open a bank account, take the Life in the UK Test or apply for an identity document not related to travelling outside the CTA.

 

Written consent from parents or legal guardian for main applicants who are under 18 years old:

Rule 34 states:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

………………

(7) 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(7) of the Rules.

If the parent or guardian of an applicant who is under 18 does not provide this written consent with their application, the Caseworker may write to them by using the validation warning and give them 10 working days to provide it. If they do not do so, the Caseworker should normally reject the application as invalid.

If the applicant attends a Service and Support Centre with their parent or guardian and the Caseworker has proof of the relationship they may ask them to provide written consent to the application at the appointment.

 

Paper application forms must be sent by pre-paid post or courier to the address on the application form:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

………………

(8) Where the application is made on a paper application form, it must be sent by pre-paid post or courier to the address on the application form”.

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.

 

Compliance with the biometrics enrolment process:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

………………………

(9) An applicant must comply with the application process set out on the visa and immigration pages on GOV.UK and in the invitation to enrol biometrics which is provided as part of the application process in relation to –

(a) making an appointment to provide biometrics, and

(b) providing any evidence requested by the Secretary of State in support of their application”.

Home Office Caseworkers 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.

 

Other issues – Date of application, simultaneous applications and variation applications

Date of application – original application: – The date of application for paper applications sent by post by Royal Mail, including Parcel Force, is the date of posting that is indicated on the tracking information, or if not tracked, on the postmark on the envelope.

The date of application for postal applications delivered by courier is the date it is delivered to the Home Office.

The date of application for an online application is the date it is submitted using the online process.

If a Home Office Caseworker withdraws a decision to treat an application as invalid and instead accepts it as valid, the date of application is the date the application was originally made.

If an application, or variation, was previously rejected as invalid and the applicant then submits a valid application, the date of application, or variation, is the date the valid application is submitted.

Simultaneous applications:- 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 paper application on the same day, the Home Office Caseworker must normally explain to them, in writing or in person at a Service and Support Centre, that only one application can be made at a time. The Caseworker must ask them to indicate within 10 working days which application they would like to be considered and which application or applications they would like to withdraw. If they do not clarify within this timescale , the Caseworker must reject all applications as invalid.

If they do respond, the Caseworker must record the response and mark as withdrawn the application they have said they wish to be withdrawn, and, if biometrics are not enrolled, return the fee they have paid for that application. This does not apply if one of the applications is a claim for protection.

Date of application and application to vary:- An applicant can vary the purpose of an application at any time before a decision on the application is made. Any application submitted where a previous application has not yet been decided is a variation of that previous application.

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, Home Office Caseworkers should write back to them confirming that they must complete a specified form and tell them which form to use.

When the original and variation applications are made online, the applicant will have paid 2 fees. The higher fee will be retained and the Caseworker must refund the lower fee. 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.

An applicant can only have one application outstanding at a time, except for one very specific exception, and where one application is a human rights or protection claim. When an applicant submits an application for leave followed by another application for leave, the second application will either be a variation of the first application, or a new application.

Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, section 3C leave.

For PBS applications, where a variation application is made in accordance with paragraph 34E, the date the variation application is made is the date to be used for the purposes of assessment against the Rules.

The very specific exception referred to above applies as follows:

An applicant submits application A in time. They transition to 3C leave and application A is refused, and the decision is served with a right of appeal. The applicant then submits application B, whilst still on 3C leave (for example, before the time limit to appeal has ended).

In this scenario, if application B is a human rights claim or protection claim, application B must be decided. If application B is any other type of application, then it must be returned as void as there is no longer an application to vary.

Applications from outside the UK:- A person can make an application to vary their continuing leave from outside the UK. Paragraph 33A of the Immigration Rules confirms this. Although such an application can be made from abroad, paragraph 33A is clear that the Secretary of State is not obliged to consider such an application. However, if the applicant leaves the UK with extant leave, makes an application to extend that leave from abroad before their leave expires, they transition onto section 3C leave and will have 3C leave indefinitely if the Home Office do not decide the application.

 

Void applications:

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
  • leave to remain from a person who has their leave extended by 3C pending an appeal, unless the application is a human rights or protection claim – see: 3C guidance 3C and 3D leave and for details on what applications are treated as human rights claims see the Rights of Appeal guidance. Rights of 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.

 

 

 

 

 

 

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