Changes to validity of applications and administrative review

The Immigration Rules have today been amended with the aim of clarifying how to make a valid application for leave to remain, and the circumstances in which fresh evidence can be submitted in administrative review proceedings.

Applications for Leave to Remain

The rules on making a valid application for leave to remain are set out at paragraph 34 of the Immigration Rules. New paragraphs 34 to 34E now set out the mandatory requirements for an application to be valid, as well as some exceptions.

In order to make a valid application, an applicant must now:

1. Complete the mandatory sections of the application form;
2. Pay any applicable fees. These must include the Immigration Health Surcharge (a charge payable so that the migrant contributes to the NHS);
3. Provide a proof of identity, usually in the form of a valid passport;
4. Provide two passport photographs;
5. Provide written consent of a parent or guardian if the applicant is under 18;
6. Provide biometric information in compliance with the process set out in the biometric enrolment letter. This includes a digital photograph of the applicant’s face, fingerprints and their signature

Under para 34B (1), if an application for leave to remain does not meet any of these requirements, the Secretary of State has the discretion to notify the applicant and provide them with an opportunity to correct the mistake. This must be done within 10 days, or the application will be treated as invalid and refused.

The Secretary of State also has discretion to allow an application to be treated as valid as long as the appropriate fee has been paid, satisfactory evidence of identity and nationality has been provided and biometrics have also been provided.

These changes come into effect from 24 November 2016 for applications submitted on or after this date.

Administrative Review.

Administrative Review is a process that can be followed when an application has been refused by the Home Office, and an applicant believes that a case-working error has been made. The decision is reviewed and generally decided on the basis of the evidence which was provided at the time of the initial application.

Under the re-drafted version of Appendix AR to the Immigration Rules, it has now been clarified that evidence that was not before the original decision-maker may sometimes be adduced in Administrative Review proceedings. Paragraph AR2.4 of Appendix AR clarifies that reviewers may consider fresh evidence in one of two situations (not both), namely where it will demonstrate that:

1. that the evidence is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), (b) or (c) has been made; or
2. to demonstrate that the refusal of an application under paragraph 322(2) was a case working error and the applicant has not previously been served with a decision to refuse an application for entry clearance, leave to enter or leave to remain; to revoke entry clearance, leave to enter or leave to remain; to cancel leave to enter or leave to remain; to curtail leave to enter or leave to remain; or remove them from the UK, with the effect of invalidating leave to enter or leave to remain, which relied on the same findings of facts.

Applications for administrative review submitted before 24th November 2016 will be decided under the previous version of rules.

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For expert advice in relation to an applications for a UK visa or administrative review, contact our direct access immigration barristers on 0203 617 9173 or via our online enquiry form.