Varying a Settlement (ILR) Application and Granting Permission to Stay: Current Guidance
In This Article:
The Home Office guidance on when decision makers should vary a settlement (indefinite leave to remain) application and grant permission to stay instead was first published on 24 June 2022. It remains published as version 1.0. Some provisions within the Immigration Rules contain express route-specific provisions setting out when this process may apply.
The process can prevent an applicant who does not qualify for settlement, but who still qualifies for further permission on the relevant route, from being left without status solely because settlement has not been granted. It does not guarantee a grant of permission: the requirements for the relevant route must still be met.
1. When Can a Settlement Application Be Varied to Permission to Stay?
The decision maker must consider the settlement application first. If the settlement requirements are not met, the decision maker should then consider whether the applicant is likely to meet all the suitability and eligibility requirements for permission to stay under the relevant route.
Where the applicable Immigration Rules provide for variation and the permission requirements are likely to be met, the application will be varied by the Secretary of State to an application for permission to stay. If the applicant meets neither the settlement requirements nor the permission requirements, the settlement application may be refused outright.
2. Which Routes Are Covered?
The 2022 guidance expressly applies to applications on the family and private life routes, the Innovator route and the Hong Kong BN(O) route. Current references include Appendix Settlement Family Life, Appendix Private Life, the Innovator Founder route and the Hong Kong BN(O) route. Appendix FM also contains provisions under which further limited permission may be granted where settlement is not available.
The guidance should not be treated as an exhaustive index of every current route containing an alternative provision. Similar provisions appear elsewhere in the Immigration Rules, including the Long Residence route, the Adult Dependent Relative route and Appendix HM Armed Forces. When a decision is made the route-specific Rules in force must therefore be checked.
3. The Process for Varying the Application
In broad terms, the current process is as follows:
- The settlement application is considered first.
- If settlement cannot be granted, the decision notice or notification should explain the requirement or requirements that are not met.
- The caseworker considers whether the applicant is likely to meet all suitability and eligibility requirements for further permission on the relevant route.
- If so, the applicant is notified that the application is to be varied and, where required, is asked to pay the Immigration Health Surcharge or take the steps to obtain a fee-waiver.
- Permission to stay is granted only if the relevant permission requirements are met and any required Immigration Health Charge has been paid or waived.
4. Immigration Health Surcharge and Fee Waiver
A variation from settlement to permission to stay will usually require consideration of the Immigration Health Surcharge (IHS). The Home Office must identify whether the applicant is required to pay, whether an exemption applies, or whether a fee waiver for the IHS is available.
Under the published guidance, an applicant who is required to pay the IHS is normally given 14 days from the date the notification is sent to make payment. On relevant family and private life human-rights routes, the applicant may instead be able to make a fee-waiver application within that period. If the fee-waiver application is refused, the guidance provides for a further 14 days to pay the IHS.
The deadline and permitted response should be checked carefully against the Home Office notification. If the IHS is not paid, and no available fee waiver is requested and granted, the varied permission application will be rejected as invalid.
5. Application Fees and Refunds
No additional application fee is required when the Secretary of State varies the settlement application to permission to stay. However, the settlement application fee will not be refunded, because the settlement application has been fully considered. This remains the position even if the varied permission application is later rejected for non-payment of the IHS.
6. Section 3C Leave and Existing Permission
The guidance recognises that an immediate refusal can affect section 3C leave and continuous residence. Section 3C leave is not held by every settlement applicant and you will carefully need to consider your position. Broadly, it is relevant where a person made a valid in-time application before their limited permission expired and the application remains undecided, subject to the statutory requirements.
If an applicant still has extant leave when the settlement application is varied, a new grant of permission will vary that existing permission. If the applicant does not pay the IHS and the permission application is rejected as invalid, any existing permission remains only for its remaining duration unless it is cancelled. The consequences can be different where the applicant is relying on section 3C leave rather than extant leave. You may wish to seek advice as to your position.
7. Appeal, Administrative Review and Judicial Review
Where the settlement application is varied and permission to stay is granted, the guidance confirms that there is no right of appeal, administrative review or reconsideration of that variation-and-grant decision.
That position should be distinguished from an outright refusal. Depending on the route and the nature of the decision, a refusal may carry a right to administrative review, or a right of appeal may arise where a human-rights claim has been refused. The decision notice and the route-specific Rules must be checked.
In an appropriate case, it may be possible to challenge the lawfulness of the decision by judicial review. Judicial review is not a further merits appeal and time limits can be short, so the decision, reasons, evidence and available alternative remedies require prompt assessment.
8. Correcting a Possible Caseworking Error
In recognition of the fact that there is no right of appeal, or administrative review or right of reconsideration where a settlement application is varied and permission to stay has been granted the Home Office guidance provides a short opportunity to identify a possible error before the 14-day period set out above expires. Any response should address the precise reason given for not granting settlement and include evidence directly relevant to that reason.
If the new information establishes that all settlement requirements are met, settlement should be granted. If it does not change the decision, the Home Office should explain why and provide a further period to pay the IHS or, where available, take the fee-waiver step.
9. Contact Our Immigration Lawyers in London
If you would like advice about a settlement application, a proposed variation to permission to stay, payment of the IHS, a fee waiver or a possible challenge, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form.
10. Frequently Asked Questions
Can the Home Office grant temporary permission instead of ILR?
Yes. On routes containing the relevant fallback provision, the Secretary of State may vary a settlement application to permission to stay if settlement requirements are not met but the applicant is likely to meet all requirements for further permission.
Is variation from settlement to permission automatic?
No. The applicant must still meet the suitability and eligibility requirements for permission on the relevant route. If neither settlement nor permission requirements are met, the settlement application may be refused.
How long do I have to pay the Immigration Health Surcharge?
The published guidance normally allows 14 days from the date the Home Office notification is sent. The notice should be checked immediately because it will state the required action and deadline.
Can I apply for a fee waiver instead of paying the IHS?
A fee waiver may be available on specified human-rights routes, including relevant family and private life cases. It is not available on every route, and the application must be made within the period stated by the Home Office.
Will the settlement application fee be refunded?
No. The settlement fee is not normally refunded because the Home Office has considered the settlement application. No additional application fee is charged for the Secretary of State variation, although the IHS may be payable.
Does section 3C leave always continue during this process?
No. Section 3C applies only where its statutory conditions are met, including a valid in-time application made before limited permission expired that has not been decided. Applicants with extant leave and applicants relying on section 3C may face different consequences.
Can I appeal if ILR is not granted but permission to stay is granted?
There is no appeal, administrative review or reconsideration where the settlement application is varied and permission is granted. An outright refusal is different and may carry route-specific review or appeal rights.
Please note that the information provided in this article is for general guidance only and is based on the immigration rules and policies in force at the date of publication. Immigration law and Home Office policy can change frequently, and requirements may vary depending on individual circumstances. Legal advice should always be sought in relation to your specific situation.
