The Home Office has published guidance on when officials should vary an application for indefinite leave to remain and instead grant an extension of permission to stay (i.e. limited leave to remain). The stated rationale is to ensure that people who apply for settlement and don’t qualify, but who do qualify for limited leave to remain, are not left without immigration status.

The guidance applies to settlement applications made under:

• Appendix Settlement Family Life
• Appendix Private Life
• Appendix Innovator
• Appendix FM
• Appendix Hong Kong British National (Overseas)

When someone applies for settlement in one of these categories but falls foul of some requirement or other, the process for decision-makers is as follows:

You must first consider the settlement application.

If the applicant does not meet the requirements for settlement, before refusing the settlement application you must consider whether they meet all the suitability and eligibility requirements to be granted further permission to stay on their current route.

If you believe the applicant is likely to meet the suitability and eligibility requirements for permission to stay you must record on the casework system that you intend to vary their application from an application for settlement to one for permission to stay (subject to payment of the Immigration Health Surcharge)…

Once the IHS has been paid and if the applicant meets all eligibility and suitability
requirements, you should grant permission to stay…

If the IHS has not been paid (or, where relevant, a fee waiver has not been applied for or has not been successful) you must reject the application… Where an application is rejected after this process the settlement application fee is not refunded as the applicant has had a full consideration of their settlement application.

The advantage of this process is that it is more streamlined than making people vary an application themselves: paying a new application fee, filling out a new form, uploading supporting evidence and sometimes seeking a refund of the old fee.

There is one tricky issue: challenging these decisions.

The guidance says that if a caseworker considers the requirements for limited leave are met instead of indefinite leave to remain, they should write to the applicant, tell them of that decision and give them 14 days to pay the Immigration Health Surcharge. They do not issue a formal refusal letter but the letter informing the person to pay the IHS tells them why the caseworker has decided they do not qualify for settlement. If the IHS is not paid, the caseworker “must reject” the application as invalid.

There is no right of appeal or administrative review where the application is varied. There is provision for the caseworker to consider further information provided by the applicant if “they believe there has been an error in the decision that they do not appear to qualify for settlement” but caseworkers are instructed to only consider that information where it is “relevant to the reasons they do not meet the settlement requirement”.

By not refusing the application, the Home Office does not trigger refusal of a human rights claim and no appeal is possible to the tribunal. The only remedy which might be possible is judicial review. It does not seem possible for the applicant to ask the Home Office to refuse the application to allow them to challenge it by appeal, instead of rejecting it as invalid. The latter has severe consequences, not least because it brings to an end section 3C leave and starts the ball rolling on all the nightmarish consequences, such as loss of the right to work.