How to make a valid immigration application
It is fundamental that applicants know how to make a valid immigration application and comply with all the requirements.
Why is it so important to make a valid immigration application?
Section 3C of the Immigration Act 1971 will only operate to prevent an applicant who has submitted an in-time immigration application becoming an overstayer after their leave expires if a valid application is made. The Supreme Court confirmed that a procedurally defective application will not engage Section 3C in the case of R (on the application of Mirza, Iqbal and Ehsan) v Secretary of State for the Home Department [2016] UKSC 63 (see here for summary).
Failing to make a valid immigration application can therefore have catastrophic consequences for applicants as they will become overstayers, liable to detention, removal and ‘hostile environment’ policies, and future applications will also be affected.
Recent case law (in connection with paper-based application forms) has highlighted that the requirements to make a valid immigration application are by their nature bureaucratic and objective, with limited room for the exercise of discretion. Procedural errors, such as failing to tick a box consenting to payment being taken or to enrol biometric information on time could lead to applications being rejected as invalid with no unfairness to the applicant.
How do I make a valid immigration application for leave to remain in the UK?
The requirements are set out at paragraph 34 of the Immigration Rules, and have recently been amended to reflect changes to UKVI’s application procedures which now predominantly require applications to be made online. The Home Office guidance has not yet been updated.
Specified application form
The applicant must use the application form specified (available on the gov.uk website) for the category of immigration application that is being made. This may be an online form, a paper form, or either. If a paper form is used it must be the current version, but there is a 21 day grace period during which the previous version of a specified form may be used.
Completion of all mandatory sections of the form
All sections marked as mandatory on paper forms must be completed. With the increased use of online forms, it should be much easier to ensure that all mandatory sections are completed, as otherwise the form cannot be submitted.
Fee
Section 16 of the The Immigration and Nationality (Fees) Regulations 2018 states that where a person has failed pay the correct fee (which is specified in those Regulations), the application may be rejected as invalid or the Secretary of State may request the person to pay the outstanding amount. The person must pay the amount within 10 working days from the request, otherwise the application must be rejected as invalid.
Again, as the majority of applications are now online, the specified fee corresponding to the type of applications should be requested as part of the process. This reduces the risk of payment not being correctly taken.
Immigration Health Surcharge
For applications where payment of the Immigration Health Surcharge is required, this must be paid. This is done as part of an online application process; or online, prior to sending a postal application which must contain the Immigration Health Surcharge reference number.
Proof of Identity
Each applicant must provide proof of identity, which should normally be a valid passport. If this is not available, another form of proof of identity can be provided. There are various situations which are specified at paragraph 34(5)(c) where proof of identity need not be provided, including where the Home Office is in possession of the document, or where the applicant has provided a good reason beyond their control for being unable to provide a document.
Written consent for minors
If the main applicant is under the age of 18, their parent or legal guardian must give written consent to the application.
Paper applications to be sent by pre-paid post or courier
Paper applications must be sent to the address specified on the application form, by pre-paid post or courier.
Complying with immigration application process and biometric enrolment invitation
Applicants must comply with the application process as set out on the UKVI website and in any invitation to enrol biometrics, in relation to making a biometric appointment and providing any evidence requested in support of their application.
For online applications, biometric information will be enrolled by the applicant at their appointment at the Visa and Citizenship Applicant Service centre. The system prompts the applicant to book this as soon as possible, and provides the latest date the appointment can be booked for.
The requirement to provide ‘any evidence requested by the Secretary of State in support of their application’ is new, and it is not clear how this will be interpreted in relation to making a valid application. This provision is concerning given that the online system provides a ‘mandatory document checklist’ tailored to the applicant, which may not reflect the requirements of the Immigration Rules.
What if my immigration application is invalid?
Paragraph 34A of the Immigration Rules states that if an immigration application does not meet the requirements set out above ‘it is invalid and will not be considered’. However, this 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.’
Where an invalid application is made and the applicant has been given an opportunity to correct their error, but has failed to do so, the Secretary of State still has discretion to treat the application as valid as long as the correct fee is paid and proof of identity has been provided (para. 34B(2)).
These are discretionary powers but they must be exercised fairly, otherwise the decision may be susceptible to challenge by way of judicial review.
The Secretary of State will serve a Notice of Invalidity where an application is invalid and will not be considered.
Contact our Immigration Barristers
For expert advice and assistance with an application for entry clearance, leave to remain or settlement in the UK, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
