Updates, commentary, training and advice on immigration and asylum law
Briefing: invalid immigration applications
Credit: thecrazyfilmgirl on Flickr

Briefing: invalid immigration applications

For a UK immigration application to be considered at all, it must be valid. Whether an applicant meets the criteria is a moot point if this first, fundamental requirement isn’t met.

Validity is a bit like oxygen: all things being well, it is invisible and unnoticeable. You only notice it when it’s absent; and if that happens, your options become very limited very quickly. Someone who applies to extend their immigration permission but accidentally makes an invalid application can end up overstaying, which is often disastrous.

So what does it mean for an application to be “valid” or “invalid”?

The Rules on validity

Paragraph 34 of the Immigration Rules lays out the default validity rules. These apply where people are applying for permission to stay in the UK in an immigration route that doesn’t have its own category-specific requirements (such as spouse/partner).

34. an application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

(1) (a) Subject to paragraph 34(1)(c), the application must be made on an application form which is specified for the immigration category under which the applicant is applying on the date on which the application is made.

(b) An application form is specified when it is posted on the visa and immigration pages of the GOV.UK website.

(c) An application can be made on a previous version of a specified paper application form (and shall be treated as made on a specified form) as long as it is no more than 21 days out of date.

(2) All mandatory sections of the application form must be completed.

(3) Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form.

(4) Where the applicant is required to pay the Immigration Health Surcharge, this must be paid in accordance with the process set out on the visa and immigration pages of the GOV.UK website.

(5) (a) Subject to paragraph 34(5)(c), the applicant must provide proof of identity as described in 34(5)(b) below and in accordance with the process set out in the application form.

(b) Proof of identity for the purpose of this paragraph means:

(i) a valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or

(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or

(iii) if the applicant does not have any of the above, a valid travel document.

(c) Proof of identity need not be provided where:

(i) the applicant’s passport, national identity card or travel document is held by the Home Office at the date of application; or

(ii) the applicant’s passport, nationality identity card or travel document has been permanently lost or stolen and there is no functioning national government to issue a replacement; or

(iii) the applicant’s passport, nationality identity card or travel document has been retained by an employer or other person in circumstances which have led to the applicant being the subject of a positive conclusive grounds decision made by a competent authority under the National Referral Mechanism; or

(iv) the application is for limited leave to enable access to public funds pending an application under paragraph 289A of, or under Part 6 of Appendix Armed Forces or section DVILR of Appendix FM to these Rules; or

(v) the application is made under Part 14 of these Rules for leave as a stateless person or as the family member of a stateless person; or

(vi) the application was made by a person in the UK with refugee leave or humanitarian protection; or

(vii) the applicant provides a good reason beyond their control why they cannot provide proof of their identity.

(6) Where any of paragraph 34(5)(c)(ii)-(vii) applies, the Secretary of State may ask the applicant to provide alternative satisfactory evidence of their identity and nationality.

(7) Where the main applicant is under the age of eighteen, their parent or legal guardian must provide written consent to the application.

(8) Where the application is made on a paper application form, it must be sent by pre-paid post or courier to the address on the application form.

(9) An applicant must comply with the application process set out on the visa and immigration pages on GOV.UK and in the invitation to enrol biometrics which is provided as part of the application process in relation to –

(a) making an appointment to provide biometrics, and

(b) providing any evidence requested by the Secretary of State in support of their application.

Paragraph A34 lists the routes that these default rules don’t apply to because they do have category-specific validity requirements. These requirements would be found in the appendix containing the rules for that category. For example, here is what the validity requirements in Appendix UK Ancestry look like:

UKA 1.1. A person applying for entry clearance or permission to stay on the UK Ancestry route must apply online on the gov.uk website on the specified form as follows:

(a) for entry clearance, form “UK Ancestry, Right of Abode or Returning Residents visa”; or

(b) for permission to stay, form “Application to extend stay in the UK: FLR(IR)”.

UKA 1.2. An application for entry clearance or permission to stay on the UK Ancestry route must meet all the following requirements:

(a) any fee and Immigration Health Charge must have been paid; and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality.

UKA 1.3. The applicant must be a Commonwealth citizen.

UKA 1.4. If applying for entry clearance, the applicant must be aged 17 or over on the date of their intended arrival in the UK.

UKA 1.5. An applicant who is in the UK on the date of application must have previously been granted permission on the UK Ancestry route as a person with UK Ancestry.

In practice, it is very rare for someone to fail to pay the correct application fee or Immigration Health Surcharge as these are now almost always collected during submission of the online form. The validity requirements that are more likely to catch people out are the category-specific ones which were previously only eligibility requirements. An example from the UK Ancestry rules is that an in-country application where the person didn’t previously have permission in the UK Ancestry route will be invalid (UKA 1.5).

Although the category-specific requirements are phrased as applying to entry clearance as well as permission to stay, Home Office guidance says that “route specific validation requirements are only applied in country; they will be rolled out to applications made out of country when the technology is in place”. Accordingly, the only out-of-country applications at risk of invalidation at present are those to which paragraph 34 applies — although I must say I have yet to see the Home Office invalidate an entry clearance application at all. Should it happen, however, I would expect the consequences to be limited to a refund of the application fee.

For completeness, we should mention paragraph 34DA, which is an invalidity rule for dependent partners/children who don’t have a sponsoring partner or parent in the same route. This is a recent addition, but pretty niche, and I do not expect it to affect many people.

If all the validity rules for a given category are met, the application will pass the first threshold and can be considered on its merits, i.e. whether the eligibility requirements are met and permission granted.

But what if one or more validity requirements aren’t met?

Invalidity that can be remedied

Paragraph 34B(1) states that, in some cases where a validity requirement is not met, the Home Office may write to the applicant and give them a chance to fix the problem:

Where an application for permission to stay does not meet the requirements of paragraph 34(1) to (9), or the validity requirements for the route under which they are applying, the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification. [Emphasis in original.]

The guidance gives examples of invalidity that could be remedied in this way, including:

If an applicant has not applied on the correct specified form, you must contact them… telling them, (indicating what the correct form is) and give them 10 working days to submit an application on that form.

If the applicant fixes the issue in time, the application will be validated. This means it will be considered to have been valid from the start — or ab initio, for the Latin speakers — and the person will not have a gap in their immigration permission.

Invalidity that cannot be remedied

This is primarily an issue with category-specific validity requirements. To return to Appendix UK Ancestry, one of the validity requirements is that the applicant must be a Commonwealth citizen. Can you become a Commonwealth citizen in ten days if you’re not one already? Seems unlikely.

From the guidance:

There are some exceptions to when you must contact the applicant with a validation reminder. Where it is clear that the applicant cannot meet the validity requirement, for example, where the applicant did not meet a minimum age requirement or a nationality requirement, and you do not consider it appropriate to exercise discretion (for example if they missed the age requirement by one day), providing a further opportunity to provide evidence that they do meet the requirement would be futile. In these cases you may reject the application without seeking further evidence…

In that case, the application will be treated as invalid from the start. This is also what happens when an applicant is given the chance to remedy invalidity but fails to do so within the time given.

Special rules for biometrics

Biometric enrollment (providing fingerprints and a photograph at a visa application centre or through a smartphone app) is a special case. Following the Supreme Court decision in Mirza [2016] UKSC 63, where all validity requirements are met except biometric enrolment, the application remains valid — and will trigger section 3C leave — until the Home Office invalidates it. This can only happen after the deadline given to enrol biometrics has passed and the application will only be invalid from the point that the notice of invalidity is sent. It is only at that point that section 3C leave ends: the invalidity notice does not have retroactive effect.

Example

Donna’s permission expires on 18 April 2022. She lodges a spouse extension application on 15 April 2022. She is given until 15 June 2022 to enrol her biometrics, a deadline that she misses.

The Home Office sends her a letter dated 18 June 2022 giving her ten more days (i.e. until 28 June 2022) to enrol her biometrics. Donna misses this deadline.

The Home Office sends her another letter dated 5 July 2022 informing her that her application is now invalid for failure to enrol biometrics.

Donna initially made a valid application which triggered section 3C leave. That means that her immigration permission ended on the date she received the notice of invalidity, which is presumed to be 7 July 2022 (allowing two days for the letter to arrive).

The Court of Appeal in R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909 has extended non-retroactive invalidity to other situations apart from biometrics (in that case, the failure to pay the Immigration Health Surcharge following a failed fee waiver application). The reasoning was that, as with biometrics, the validity requirement only arose after the application had been submitted. Logically, this may also apply to validity requirements such as production of valid ID as this is only provided up to two months after submitting the application. However, this is as yet untested in practice.

What happens if an application is invalid from the start?

If a migrant makes a valid application to extend their permission to be in the UK before it expires, their existing permission will be rolled over until a decision has been made on the application, even if this is after the original expiry date. This is known as section 3C leave, after the relevant provision of the Immigration Act 1971.

Where an application is invalid from the start, section 3C leave is never triggered and the clock continues ticking on the person’s immigration permission. The person may well find themselves an overstayer by the time they are notified that their application is invalid.

The fact that the person tried to extend their permission is no help. It is as though they never applied at all: the application vanishes.

Variation applications

A variation is where someone has an outstanding immigration application that has not yet been decided by the Home Office and they change it to a different one. For example, someone who applies as a partner might vary their application to a parent route application if their relationship breaks down since lodging the application but before it is decided.

Need affordable legal advice?
Arrange a video chat at a time that suits you. Use your own smartphone, pc/mac or tablet. No commitment, no risk.
chat
Talk to Us

For a variation application to be valid, the initial application must be valid. As noted above, this does not include the enrolment of biometrics, as this is not necessary to validate an application (because a failure to enrol biometrics can only result in a non-retroactive invalidation). The variation application must also be valid.

If the variation is invalid, it is exactly like an initial application being invalid: the variation vanishes, as if it was never made, leaving the original application outstanding to be decided.

In principle, a failure to enrol biometrics for a variation application is a little different. A valid variation application, as per Mirza, would initially have been made and the invalidation would only come later without retroactive effect. In these cases, I would not expect things to default to the original application, though this is also untested.

Is there life after invalidity?

Let’s say that despite all your best efforts, you have just received a notice of invalidity. What do you do?

First, take a deep breath and don’t panic. Second, consider the type of invalidity.

Missed biometric deadline

If the application was correctly invalidated for failure to provide biometrics, your section 3C leave ends with the notice of invalidity. You now have 14 days to lodge a fresh application under paragraph 39E, which provides a grace period for overstayers. If successful, your overstaying from after the notice of invalidity will be disregarded and there will be no break in the continuity of your immigration permission (although you can’t actively count the period of overstaying towards the five- or ten-year qualifying period for indefinite leave to remain).

Example

Donna, who we met above, received a notice of invalidity dated 5 July 2022, which is deemed to be received by her on 7 July 2022. She now has until the end of 21 July 2022 to lodge a new application for permission to stay in the UK.

Other types of invalidity

What if the application was invalid for any other reason and was thus invalid from the start?

Following the Court of Appeal decision in Afzal, you would still fall under the protection of paragraph 39E if you lodge a valid application within 14 days of the notice of invalidity. As above, your overstaying will be disregarded but will not count towards your qualifying residence period.

You may never have had section 3C leave, and will likely be an overstayer for much longer than in the earlier example, but you’ll still receive the benefit of paragraph 39E. We have previously written about this possibility here.

Application incorrectly invalidated

In this case, it may be worth challenging the rejection. This is done by judicial review, which begins with a letter before claim sent by a lawyer.

In cases where it’s relatively obvious that a mistake has been made, the letter before claim will generally be enough to get the Home Office to withdraw the notice of invalidity.

It is also worth bearing in mind that the Court of Appeal in Afzal found that with the exception of biometrics, validity or invalidity is something that happens independently of the Home Office:

… the fact that the application was a nullity means that there was no decision as such varying leave to remain or otherwise: the invalidity occurs independently of any decision by operation of law. The Secretary of State does not determine that the application is invalid; she has no discretion. That consequence flows from the application of the rules. The notification that the application is invalid is just that: a notice informing the applicant that no valid application has been made and that there is nothing for the Secretary of State to consider

That means that where an application has been incorrectly determined to be invalid by the Home Office, it remains valid and can, for example, be validly varied.

This may be useful where the notice of invalidity reminds you that although the Home Office is incorrect about a validity requirement not being met, you don’t meet an eligibility requirement that is drafted quite similarly to an entirely separate validity requirement. In other words, even if you can get the Home Office to consider your application, it will be refused anyway. In those circumstances, it might be worth varying the application, if possible, immediately before challenging the notice of invalidity.

Example

Joe is in the UK on the Student route and wants to switch to Skilled Worker. He is issued a certificate of sponsorship by his prospective employer on 13 April 2022 for a job that begins on 13 September 2022.

He uses it to lodge a Skilled Worker application on 19 April 2022. His application is incorrectly invalidated on 15 June 2022 on the ground that he applied for a job with a start date more than three months in the future.

Joe takes the notice of invalidity to a lawyer who informs him that the Home Office made a mistake. The requirement for the job to start no more than three months into the future is an eligibility, not a validity requirement. The caseworker appears to have confused this with a validity requirement that says that the applicant must lodge an application within three months of the certificate of sponsorship being issued (which Joe did).

However, the lawyer points out that although the Home Office incorrectly invalidated the application, because he made it more than three months before the start of the job, it would be refused if considered. Joe accordingly varies the application to the Graduate route before his lawyer sends a letter before claim informing the Home Office of their mistake.

On 5 July 2022, the Home Office responds, confirming that the application was, in fact, valid all along and that accordingly, it had been validly varied to the Graduate route and will now be considered.

Joe is granted permission in the Graduate route on 29 July 2022.

Alex Piletska is a solicitor at Turpin Miller LLP, an Oxford-based specialist immigration firm where she has worked since 2017. She undertakes a wide range of immigration work, including family migration, Points Based System applications, appeals and Judicial Review. Alex is a co-founder of Ukraine Advice Project UK and sits on the LexisPSL panel of experts and Q&A panel. You can follow her on Twitter at @alexinlaw.