Applying for further leave with no valid passport
There are a number of reasons why an applicant cannot provide a valid passport when making an application to the Home Office for further leave to remain in the UK. Examples of this might be that an applicant has come into the UK clandestinely without ever having had a passport or was trafficked, and was subsequently recognised as a refugee. In such cases obtaining a passport from the authorities in the home country may not be possible. Another reason as to why an application may have no valid passport is hinted at in the guidance below, where a passport has been lost or has expired and there is now no functioning government in the home country to issue a new one. Sometimes the documentation which would support the issuing of a new passport is impossible to obtain.
The failure to provide a passport with an application to the Home Office need not be immediately fatal.
Asking the Home Office to ‘exercise discretion’ where is no valid passport
One of the prime purposes for requesting a valid passport is to produce proof of identity, although other matters might be evidenced such as travel dates, etc. But it is necessary, where a valid passport is required, to set out fully the reasons for the absence, with evidence such as police reports (following a theft) or other documentation which would support the narrative as to why the passport cannot be provided.
The requirement to provide this proof of identity is set out in paragraph 34 of the Immigration Rules. This Rule applies to all applications made for further leave to remain (including indefinite leave to remain), and it states:-
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.
The guidance relating to the requirement to produce a passport to provide other information often gives other suggestions for providing evidence in circumstances where a passport cannot be provided, for example:-
Applications made on the basis of residence in the United Kingdom
Evidence of lawful residence during the 5 years (or, if the applicant is married to or in civil partnership to a British citizen, 3 years) before the date of the application.
- Your passports
- If you are unable to provide your passport explain why and supply letters from employers (including start and finish dates), payslips, P60s, educational establishments or other government departments indicating the applicant’s presence in the United Kingdom during the relevant period …
Therefore clearly, in most circumstances, the failure to provide a valid passport does not mean an application must fail. The Home Office must instead be invited to exercise discretion and consider the application because good reasons are given for the absence of the passport. Further, the applicant should have made every effort to provide an alternative proof of identity and should not have manufactured the circumstance leading to its absence (‘a good reason beyond their control’).
European Nationals with no valid passport
Applications under the 2016 Regulations
The requirement for European nationals to provide evidence of identity was, in contrast to paragraph 34, somewhat relaxed under the 2016 Regulations (the effect of which will end on 31 December 2020 with the ‘transition period’). National identity cards, for instance, were accepted from the EU national in place of passports. This discretion was not extended to their their family members, but again, where valid passports cannot be produced, the guidance to completing the Permanent Residence application form says:-
“Please note: we can only accept alternative evidence of identity and nationality if you are unable to obtain or produce the valid passport(s), travel document(s) or EEA national identity card(s) due to circumstances beyond your control.”
See also Rehman (EEA Regulations 2016 – specified evidence) [2019] UKUT 195 (IAC).
The Settled Status Regime
The discretion under the Settled Status scheme to admit alternative evidence for an applicant’s identity in lieu of a passport is even wider than that under the 2016 Regulations. The Home Office guidance entitled ‘EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members’, Version 2.0, published for Home Office staff on 03 October 2019, states on page 22 that:
“There may be reasons why an applicant in the UK cannot provide the required proof of identity and nationality in the form of a valid passport; (for an EEA citizen) a valid national identity card; or (for a non-EEA citizen) a valid biometric residence card or a valid biometric residence permit. You may accept alternative evidence of identity and nationality where the applicant cannot obtain or produce the required document due to circumstances beyond their control or due to compelling practical or compassionate reasons.
[…]
Each case must be considered on its individual merits and you must refer to a senior caseworker in all instances where the applicant seeks to rely on alternative evidence of identity and nationality […].
…
In these circumstances the applicant is to be requested to provide as much information as possible, including details of any applications for documentation they may have made to their national authority (if applicable), and provide alternative evidence of their identity and nationality.
These are good rules of thumb to follow:- the reasons for failing to provide a passport in an application should be compelling and not within the applicant’s control, the applicant should have made every effort to comply with the requirement, and wherever possible acceptable alternative forms of their identity and/or nationality should be provided.
Contact our Immigration Barristers
For advice and assistance with the evidential requirements for making an application for further leave to remain, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
