Updates, commentary, training and advice on immigration and asylum law
Making an early application to beat the immigration health surcharge increase
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With the news that the immigration health surcharge will be going up dramatically, potentially in the next few weeks, it makes sense for people already in the UK or looking to move here soon to look at whether an early application is possible. As a reminder, the increase is from £624 per year for most applicants and £470 per year for children, students and student dependants to £1,035 per year for the former group and £776 per year for the latter group per year.
Update on timetable for the increase
On Wednesday the Delegated Legislation Committee will debate the draft Immigration (Health Charge) (Amendment) Order 2023. The Institute for Government has a useful explainer on what will happen after that. Essentially, the committee will debate and agree a motion that they have ‘considered’ the order. The order will then proceed to the House of Commons for a vote, this will happen on a later day than the committee’s debate.
This means that we do not yet know when the House of Commons will approve the order. The order will come into force 21 days after it has been ‘made’ by the Minister which will happen after it has been approved by both Houses of Parliament. The House of Lords has already approved the order.
There are still over three weeks, and possibly longer, before this increase will come into force and so it is worth people considering whether an early application is possible.
Moving to the UK
To give you an example of just how drastic this fee hike is, a spouse entry clearance application currently costs £3,718 (£1,846 in application fees and £1,872 in immigration health surcharge). Once the immigration health surcharge hike goes into effect, it will cost £4,951. A five-year UK Ancestry visa which currently costs £3,757 (£637 in application fees and £3,120 in immigration health surcharge) will soon cost a whopping £5,812.
It’s important to check whether you can still meet the requirements if applying early. If you’re applying for a spouse visa on the basis of employment that started four months ago, you may need to wait until it’s been held for six months. Similarly, if you’re applying as a Skilled Worker, your Certificate of Sponsorship must have been issued in the last three months at the date of application and you must not apply earlier than three months before the job start date.
Extending your existing permission in country
If you’re already in the UK with permission to stay and you have an extension application coming up, it may be equally possible to apply early to beat the price increase. There’s an idea floating around that you can only apply for limited leave within 28 days of the expiry of your current leave. This is a myth.
The family life guidance currently says this:
The applicant should be advised that, where eligible, they should make a valid application for further leave to remain as a partner no more than 28 days before their extant leave is due to expire, or no more than 28 days before they have completed 30 months in the UK with such leave.
Where a person submits an Appendix FM partner application up to 28 days before they have completed 30 months in the UK with leave to enter or remain as a partner under Appendix FM, that person will be considered to have met the required continuous residence period of 30 months as a partner.
However, there is absolutely no basis for this in the immigration rules and it is established law that guidance cannot introduce stricter requirements than those that exist in the rules. There is simply no “continuous residence period of 30 months as a partner” requirement for you to meet at the extension stage. The rules only say that you must currently have leave as a partner to extend.
It’s true that you might be refused settlement if you apply too early but that’s because whichever settlement rules you’re applying under usually do have a residence requirement, which is usually five or 10 years. There is no such requirement for extension applications.
The basis of the 28 day myth is probably the fact that in many application routes, when an application is granted while the applicant still has extant leave, the Home Office will add a maximum of 28 days to the period of leave being granted. From the family life guidance:
Where an applicant currently has extant leave to enter or remain as a partner under Appendix FM at the date of application (excluding a grant of limited leave to remain as a fiancé, fiancée or proposed civil partner), that period of extant leave, up to a maximum of 28 days, will be added to the period of leave to remain that they are being granted as a partner.
However, that is not to say that it’s always a good idea to apply too early. If applying early means you end up being granted your next extension much earlier than you would have otherwise been granted it, you might end up having to lodge one more extension application than you would have otherwise had to in order to get to the five or 10 years that you require, which would usually end up costing you more money in the end.
Despite earlier claiming that an application earlier than 28 days is not possible, the above-quoted guidance goes on to say what may happen if an applicant is granted an extension too early:
A person who applies more than 28 days before their leave is due to expire or they have completed the relevant qualifying period may not meet the requirement to have completed at least 60 or 120 months in the UK with relevant leave to remain in order to apply to settle and may instead need to apply for a further period of limited leave.
So, it is possible. You just need to time it carefully to avoid having to lodge additional applications, which are also possible but ultimately more expensive than just applying at the right time.
Some cases will be more straightforward when it comes to timing.
Some are borderline.
How to slow down an application
If you’re one of the borderline cases, it’s useful to know how to slow down the application. The main thing to remember is that it’s just the online application form that has to be lodged before the immigration health surcharge increase to avoid paying the higher fees.
Depending on your application route, you may be invited to enrol your biometrics at a UKVCAS centre or a Service and Support Centre. Where you’re applying in a route where you use a UKVCAS centre, you are usually given around two months from the date you submitted the online form to upload your documents and enrol your biometrics. If you delay this until close to the last possible moment (it’s not a good idea to leave it until the very last possible moment, just in case), you buy yourself an extra two months during which time, no decision can be made on your application.
If you’re at the start of the 10 year route to settlement, you might take a risk and apply several months before your leave is due to expire, with the aim of slowing down both the current and the next application this way.
If you are eligible to apply using the ID Check App, your biometrics are uploaded as part of the submission of the application so there is no way of delaying this part of the process once you have applied. However, you can instead opt to apply using the UKVCAS route by selecting the option that you do not have a compatible phone at one of the earliest points when you create a new application, which will direct you to the UKVCAS route instead.
Tinkering with the timings of applications like this often requires careful consideration so consider seeking legal advice if you’re not sure, as this can often prevent having to spend a lot more money down the line fixing mistakes.