Changes Made To The Way Invalid Applications Will Be Considered
When an application is submitted to the Home Office it must be valid. This means that, amongst other things, it must be on the correct application form and accompanied by the correct fee, the applicant’s passport and photograph. Previously, if an application did not conform to these requirements, the Home Office would have rejected the application as invalid and it would be returned to the applicant as if the application had never been made.
However, now following to a change in the Immigration Rules in November 2014, individuals may be able to avoid this pitfall.
The previous approach had the potential to create an injustice for some applicants. If an application is made prior to the expiry of the applicant’s leave, their leave will automatically be extended by section 3C of the Immigration Act 1971 until that application has been determined.
Where the application is invalid and treated as if it was never made, s3C will not operate. This means that if the Home Office reject an application as invalid after the time when the applicant’s leave would have expired, they will have become an overstayer at the date their leave expired, although they may not have found out until the Home Office writes to the individual. In some cases this would be more than 28 days after the previous grant of leave had expired, meaning that an applicant would not only have unwittingly become an overstayer, but also that they would be denied the chance to make a fresh application and have interrupted their period of long residence by virtue of the period of overstaying.
This left individuals open to an unfairness which there has now been an attempt to rectify in the Statement of Changes of 16 October 2014. The new paragraph 34C in the Immigration Rules states that a Notice of Invalidity will be made in writing and the decision maker may contact the applicant or the representative in writing to give an applicant a single opportunity to correct any omission or error which renders the application invalid. The applicant is given 10 business days to do so.
This now gives individuals the chance to rectify simple errors without having to submit a fresh application as an overstayer. However, the immigration rules states that the decision maker may contact the individual; there is no requirement that they must do so.
The Home Office guidance on this issue is currently confusing. The guidance at page 21 states both that if there is a problem with the photograph submitted with the application, it must be rejected as invalid and also that where there is a problem an applicant must be given the opportunity to correct this. These statements are neither consistent with each other, nor with the new Immigration Rules.
In other sections of the guidance it states that an Applicant must be given the opportunity to correct errors. While the Immigration Rules allow a discretion for whether or not an applicant is given the opportunity to correct an error, it appears that through the guidance all individuals should be given the opportunity.
The rule is also clear that an individual will only be given a single opportunity to rectify an omission or error. This means that if the error or a different error persists for the second time or is not addressed in the allowed time, or at all, then the application will be invalid.
Despite these potential problems with the change to the Immigration Rules, it is fundamentally a useful change, which could assist many migrants avoid overstaying due to basic errors.
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For advice and assistance in relation to an invalid application, contact our specialist immigration barristers in London.
