How to Make a Valid UK Immigration Application
Certain requirements must be met in order for an immigration application to be valid. It is important to understand how to make a valid immigration application, as invalid applications can have significant consequences in relation to one’s status in the UK, time and money.
Paragraph 34 of the Immigration Rules provides the requirements which are necessary in order to make a valid application for permission to stay or leave to remain in the UK. Although such validity requirements apply to applications for leave to remain in the UK, they are also similar to those that would apply for applications for entry clearance to the UK. It is the case that each immigration category tends to list the validity requirements which the applicant must meet in order to have a valid application. Certain categories will go beyond the common validity requirements, for example, one of the validity requirements on the Innovator Founder category is the requirement to have an endorsement letter issued by an endorsing body within three months of the application. It is therefore important that applicants consider each category’s validity requirements and whether they have met them. This post will look at some of the most common validity requirements.
What Is the Importance of Immigration Application Validity Requirements?
The validity requirements are generally set out at the beginning of the rules applicable to each immigration category, from which their significance can be inferred. If the validity requirements are not met, it can result in an application being rejected as invalid. Where an application is rejected as invalid, Paragraph 34A of the Immigration Rules states that it will “not be considered”. This effectively means that the Applicant is treated as not having made an immigration application. The wording in Paragraph 34A is repeated in the rules relating to individual immigration categories, for example, where one is applying for entry clearance or permission to stay as a Visitor, the section which sets out the validity requirements for this immigration category, states: “An application which does not meet all the validity requirements for a Visitor may rejected as invalid and not considered”. This is similar wording as used when one is applying as a Skilled Worker, whether entry clearance or permission to stay: “An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered.”
What Are the Consequences of Having an Application Considered Invalid?
A significant consequence of having an application rejected and considered as invalid relates to one’s status in the UK, where they are applying for permission to stay for example. An applicant might find themselves in a situation where their leave is about to expire, they submit an application to extend their stay in the UK and their leave then expires without a decision having been made on their application. Normally the fact that they have a pending application to extend their stay in the UK, will result in the applicant having the benefit of Section 3C of the Immigration Act 1971. This really useful section allows for the Applicant to continue to have leave in the UK with the same conditions as they previously had in the UK. This leave will continue generally until a decision is made on their application and any appeals or administrative reviews the individual might be entitled to, if applicable. This ultimately prevents the person from becoming an overstayer. However, it is important to note that Section 3C only applies where a valid application has been made. The consequences of submitting an invalid application therefore will be that the applicant whose permission has expired whilst they are waiting for a decision will not have the benefit of Section 3C and will therefore be in the UK as an overstayer. Given that the individual is now an overstayer, they will not have legal status to be in the UK, therefore will not have the right to work or rent in the UK. They will further be liable to detention, removal and any future immigration applications might be affected.
Other consequences of having an invalid immigration application include having to submit a new application and pay the associated fees of that application, where one still has time to submit a new application for leave to remain before their current leave expires. Such fees have recently increased as we explained in this blog post. It will also be a case of going through the associated requirements of filling in a new application form, submitting evidence, attending another biometric appointment and paying the associated fees. It will also likely impact on an individual’s ability to travel whilst their application is pending, given that an application will be treated as withdrawn when one travels abroad or requests the return of their passport in order to travel outside the UK.
What Are the Most Common Validity Requirements?
Applying on a specified form
In order to have a valid immigration application, one is required to apply on the form which is specified for that immigration category. The Immigration Rules clarify that an “application form is specified when it is posted on the visa and immigration pages of the GOV.UK website”. For example, the Immigration Rules in relation to the Global Talent category state the following in relation to which application forms must be used in order to apply:
- EEA national with a chipped passport – either Global Talent using the UK Immigration: ID Check app (when available); or the forms listed for applicants outside or inside the UK as relevant;
- Applicants outside of the UK: Global Talent visa – Stage 2
- Applicants inside the UK: Global Talent permission to stay – Stage 2.
In most cases undertaking a Google search of the category you are looking to apply under should lead you to the GOV.UK website page for the immigration category, which should also have a section on “how to apply” and this should lead you to the necessary pages with the relevant application form links. It is important to note that the application form must be the one specified on the date on which the application is made.
It is still possible to use paper forms for certain routes and where they are used the current version needs to be used. However, where an application is submitted using an old version of an application form, the Validation, variation, voiding and withdrawal of applications Home Office guidance states that this can be “treated as made on the specified form” as long as on the date the application is made that version of the form the applicant has used is “no more than 21 days out of date” and was formerly specified for the immigration route under which they are applying. Importantly, the paper application form must be sent by pre-paid post or courier to the address which is provided for on the application form.
Completion of mandatory sections of the application form
One must ensure that they have completed all the mandatory sections as stipulated in the application form. This is likely not to cause problems given that most forms are now online and the system does not allow you to submit, and most of the time even move on to the next question on the form without answering the question one is on. This might, therefore, be a more significant requirement for those who are filling in application forms on paper.
Payment of application fees
Most applications will have application fees associated with them and these need to be paid in order for the form to be submitted. The application fees must be fully paid in accordance with the processes which have been identified in the application form. It is possible that one might not need to pay fees as set out if one has made an application for a fee waiver which has been fully granted or granted in part.
Payment of the Immigration Health Surcharge fees
The healthcare surcharge is normally a fee associated with an application which will result in an individual being granted permission for a period of more than six months if they are applying from outside the UK or for any length of time if applying from inside the UK. It is important to note that applicants will not need to pay this fee if they are applying for a visitor visa or to permanently be in the UK (settlement or citizenship). Certain other categories of people will not be required to pay or obtain an IHS reference number as identified on the government website. The Immigration Health Surcharge Fees are due to increase significantly as early as January 2024.
In most cases an applicant will need to pay for the IHS fee first in order to obtain their reference number, this should be populated onto their application form automatically and then will be asked to proceed to the application fee payment stage. Applicants should therefore be prepared to pay both fees at the same time.
Provision of proof of identity
Applicants will need to provide proof of identity. Proof of identity is defined in Paragraph 34(5)(b) of the Immigration Rules (validity requirements for permission to stay applications) as:
“(i) valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or
(ii) if 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.”
The Rules do recognise that some people might not be able to provide proof of identity, therefore explain that it will not need to be provided if, for example, if the Home Office has one’s passport, national identity card or travel document at the date of application; the application is made under Part 14 of the Rules where one is applying as a stateless person or the family member of a stateless person; or the application was made by someone in the UK who has refugee leave or humanitarian protection. Other circumstances which might result in proof of identity not being requested can be found at Paragraph 34(5)(c) of the Immigration Rules. It is also the case that the Secretary of State might ask for “alternative satisfactory evidence of” one’s nationality and identity where they do fit into the circumstances described in the Rules.
Complying with immigration application process and biometric enrolment invitation
The visa and immigration pages on GOV.UK will set out certain application processes and applicants should ensure that they follow these in order for their applications to be valid. Applicants will be asked to provide their fingerprints and photo (biometric information) when applying. The biometric enrolment processes will also need to be followed, therefore an applicant will need to ensure that they book an appointment in order to provide their biometric information, they attend that appointment and provide any evidence requested by the Secretary of State in support of their application either before their appointment, when uploading in advance of such an appointment or at the appointment itself. The use of the UK ID Check App will make this process different for certain applicants who can now enrol their biometrics without attending an in person biometric appointment at a visa application centre.
Is There Any Way to Make an Invalid Application Valid?
Paragraph 34 of the Immigration Rules as explained above, is subject to Paragraph 34B which states:
“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.”
It is possible therefore that an applicant might be contacted by the Home Office asking for them to correct an error or omission which has resulted in their application being considered invalid before they decide to reject the application. The applicant will normally be given 14 days to meet the requirement according to the Home Office’s guidance. The Secretary of State still retains discretion to treat an application as valid where an applicant has failed to rectify their error where they have been given the opportunity to do so. This can happen as long as the correct fee for the application is paid and biometrics provided.
There are, however, certain validity requirements which cannot be rectified and therefore the application is highly likely to be considered invalid and rejected. The Guidance gives examples, including, not meeting the age requirement for a specific immigration route; not having or recently had permission on a certain immigration route; or the applicant not being in the UK or outside the UK (as required by the immigration route) when they submitted an application.
Contact our Immigration Barristers
For expert advice and assistance with your immigration matter, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.
