On the surface, all that is required to enable preparation and submission of a successful application to the Home Office is self-evident. After all, the application forms themselves are free and readily accessible (postal or on-line, as relevant). These applications forms indicate what documents are required to support an application. Additionally, voluminous Home Office guidance policy is transparently available for leisurely perusal in advance of submitting an application. With all this in sight, in some categories, it seems there isn’t even any need to consult a legal practitioner prior to submission of an application.
There are however in-built laws, policies and procedures in the assessment process of immigration applications, such that a seemingly straightforward application may end up falling foul of these provisions.
The Specified Forms and ApplicationsHome 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 :
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.
Following an adverse decision being made by the Home Office, an affected person may be torn between re-applying for residence documentation, requesting reconsideration or appealing an EEA decision. In practice however, requesting that the Home Office re-consider a decision made on deportation grounds, rather than submit an appeal would be pure folly: the Home Office are very likely to maintain the same negative decision and most importantly, the failure to appeal would likely leave the EEA national or their family member subject to deportation without any other viable alternative remedy and liable to imminent removal.
Prior to 9 March 2017, the general view certainly was that, Home Office practice (subject to some exceptions), was to routinely grant settlement to refugees who had completed the 5year probationary period. On 9 March 2017, the Home Office however published updated Guidance, Refugee Leave dated 2 March 2017, firmly indicating that, “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.
Not only that but that refugees can be subject to the review procedure at any juncture whilst holding refugee status, “ A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection”.
The procedural formalities introduced on 1 February 2017 via the coming into force of the new 2016 EEA Regulations, mean that where an application for EEA residence documentation is not submitted on a prescribed application form and is not accompanied by specified supportive documentation, such an application is now very likely to be rejected as invalid, i.e it will not be considered at all by the Secretary of State.
Regardless of whether the Secretary of State may exercise discretion over whether to accept the application or not, it is not clear why EEA applications submitted after 1 February 2017, must now pass a validity hurdle.
Only a month and two weeks after the coming into force of the massive increase to the immigration Tribunal fees, the Government announced suddenly on 25 November 2016 that it was abandoning the rise of up to 500% in immigration tribunal fees.