How to Vary an Existing Immigration Application
It is possible to vary an existing immigration application under the Immigration Rules, that is to submit another application whilst you already have an application pending. There are, however, certain complexities associated with this.
The Home Office’s Guidance clarifies that the variation rules apply to both applications made under the Immigration Rules in and outside of the UK, however the variation rules “are currently only applied in practice as variation requirements to applications made in the UK.” This post therefore concerns variations of permission to stay applications, those made within the UK.
What is a variation application?
A variation application is “any further application” that is made when an applicant has an outstanding application, for the purposes of this blog, the outstanding application is one for permission to stay in the UK (“the original application”). Paragraph 34BB of the Immigration Rules identifies some of the requirements of variation applications and the manner in which they operate.
How do I make a variation application?
Ensure it meets the validity requirements
Paragraph 34BB(2) states that any application to vary a previous application must “comply with the requirements listed in paragraph 34 of the Immigration rules or the validity requirements for the route applied for.” Paragraph 34 identifies how a valid application for permission to stay can be made in the UK. It is important to note that Paragraph A34 provides a significant number of immigration routes to which Paragraphs 34 and 34A do not apply. In such cases in order for a variation application to be valid, it will have to meet the validity requirements for the route applied for, which Paragraph 34BB, quoted above, allows for.
Where the validity requirements are not met whether in line with Paragraph 34 or those relating to the specific route which pertains to the variation application, the variation application will be treated as invalid and not considered. Paragraph 34BB, however goes on to state this is subject to paragraph 34B which, summarised, states that the application will be invalid unless the Secretary of State notifies the applicant that the validity and/or suitability requirements have not been met and gives them the opportunity to rectify the situation and the applicant does so within the specified time frame.
Ensure it meets the temporal requirements
An applicant will need to submit a variation application before a decision is made on the original application. If the decision has been made on the original application, the variation application will be treated as a new immigration application. An application is treated as submitted in the following situations:
- where a paper application form is sent by Post via Royal Mail, whether or not with a fee waiver request, the date of posting which is shown on the tracking information or where not tracked, the postmark date on the envelope;
- where a paper application is sent by courier, or another provider of postal services, the date it is delivered to the Home Office;
- where the application is made online and there is no fee waiver request, the date on which the online application is submitted;
- where the application is made online and with a fee waiver request, the date on which the online request for the fee waiver is submitted, provided that the completed application for permission to stay is submitted within 10 working days of the decision on the fee waiver having been received.
Ensure that the the other requirements for the route of variation are met
The variation application will also need to meet the suitability, eligibility and any other requirements of the specific route being applied for. If applicable, one will therefore need to also submit any supporting documents to demonstrate that the requirements are met. One will also need to provide their biometric information to ensure that their application can start being processed.
Which application will the Home Office consider and how will they consider it?
Once a variation application has been made, Paragraph 34BB states that the Secretary of State (the Home Office) will contact the Applicant to notify them that the new application “is being treated as an application to vary and that any previous application will have been varied.” This notification does not seem to always be sent, therefore it can be unclear whether a variation application has been made. However, if you have made a valid variation application as described above and in line with the Immigration Rules it is reasonable to consider that the original application has been varied. The original application as a result will no longer be considered and the Immigration Rules are clear that only the “most recent application will be considered.”
When does a variation application apply/in which situations can a variation application be made?
Variation is a useful tool for various reasons. There are three main situations which come to mind when considering when a variation application will be necessary.
Firstly, the situation which is likely the one envisioned by those who drafted the Immigration Rules and decision makers, one involving a change of circumstances. For example, an applicant submits an application for leave to remain on the Skilled Worker route, however for some reason no longer meets the requirements for the route and decides that they want to apply for the Global Talent route instead. The applicant, if they meet all the requirements for the route, such as having the necessary endorsement, can submit an application for permission to stay in the UK in the Global Talent route. This new Global Talent application will be treated as a variation provided that it happens in line with the Immigration Rules on variation and the route’s requirements as explained above.
Secondly, a situation where the applicant’s leave in the UK is about to expire, however they are not yet able to submit an application to extend their stay in the UK for whatever reason but will be able to shortly. The applicant might, for example, be in a situation where if their leave expires and they leave the UK, as required when their permission ends if not validly extended, they will not be able to meet the continuous lawful residence requirement for any future settlement application. Making a generic visa application for a route which allows them to stay in the UK (“a holding application”) before their current leave expires and then submitting a variation application for the route they meet the requirements for in order to extend their stay, will aid in allowing them to be in the UK continuously. Both applications, however, will need to be made carefully and with immigration advice in order to ensure that the rules are effectively met and there will be no potential suitability issues in the future.
Thirdly, where an applicant has made an application but does not want to vary their application to another route but instead submit an application in the same immigration route. This can, for example, be useful where one would like to get a faster decision on their application, in the event of an emergency that requires them to travel out of the Common Travel Area as travel outside of this area will lead to an application being withdrawn. It can also be useful if one did not originally obtain priority services, for example, if they were not available at the time they made the original application but are now available and a decision still has not been made on the original application. The applicant can technically submit a new application in the same category and use the priority services, if available, to get a faster decision on their immigration application. Although it is likely that the Immigration Rules did not envision this scenario as the reason for variation applications, as above, Paragraph 34BB(1) states that:
“Where an applicant has an outstanding application for […] permission to stay which has not been decided “the previous application”), any further application for […] permission to stay will be treated as an application to vary the previous application and only the most recent application will be considered.” [Emphasis added]
The use of “any further application” in the above, makes it easy to consider the submission of a new application in the same Immigration route as the original application previously submitted by an applicant, a variation application.
The above scenarios do come with their own complications and whether they are applicable will vary depending on each person’s circumstances. It is important to obtain expert immigration advice when considering making a variation application as there are many factors that will come into play. These factors include, timing, making sure that validity requirements are met, ensuring that the rules have not changed, for example, where the new variation application being submitted is in the same route as the original application and ensuring that one does not overstay.
The Home Office’s Guidance also states that there are certain applications which cannot be varied, for example, human rights applications, including asylum claims. If you are in a situation where you have submitted a human rights application and would like to submit a variation application in a non-human rights route, it is important that you contact our expert immigration advisers to obtain advice on how to approach this situation. One should also seek advice where they are considering making a new application whilst their leave in the UK is extended by virtue of Section 3C of the Immigration Act 1971. It is also important to note that Paragraph 34BB does not apply to applications made under Appendix EU.
Which date will my application be seen as having been made?
In most cases the variation application will be treated as having been made on the date the original application was made. It is important to note, however, that the variation application will be considered according to the rules applicable at the time that the variation application was made and not the date when the original application was made.
Any evidence submitted will be considered from the date of the variation application and not the original application. For example, where financial evidence has to be provided for the last six months and within 28 days of the date of application, the date relied upon will be the date on which the variation application was made and not the original application.
Variation applications and dependants
Dependants can also make variation applications where the immigration route in which the variation application is being made allows for this. Dependants will need to apply at the same time as the main applicant, either using the same application form as the main applicant, where the variation form allows for this or using separate application forms to the main applicant, where the variation application form does not allow for dependants to be added to the same form as the main applicant.
If the dependant was included in the original application and is included in the variation application, the dependant’s date of application will be the date that the original application was made. Where the dependant was for some reason not included in the original application but is included in the variation application, the date of application for the dependant’s application is the date the new application was made.
Application fees and variation applications
A new application fee and Immigration Health Surcharge fee will need to be paid when a variation application is submitted. The applicant should have their previous application fees refunded, this can however take some time and might also require one to resort to UKVI’s complaints procedure.
The refund of fees can also be complicated, for example, where there is a difference between the application fees paid as the applicant will need to pay the difference between the two fees. This will need to be considered where the new route has more costly application fees as compared to the original application’s route. It will also soon likely need to be considered even where a variation application is made in the same route as the original application if the original application was made before 04 October 2023 and the variation application made on or after that date, the date when the visa application fees are set to increase.
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