The risk of visa applications being treated as withdrawn due to travel

It is common for immigration lawyers to advise clients in the UK that travelling outside the Common Travel Area (CTA) when an immigration application is pending will result in the application being treated as withdrawn (cue fiddly explanations to clients as to what constitutes the CTA). It is also common for immigration lawyers to advise clients that travelling into the UK whilst an entry clearance application is outstanding may in certain circumstances also cause difficulties. This article looks at when you are and are not able to travel, and how important your location is to your application.

Location at the time of submission: does it really matter anymore?

Back when UK Visa and Immigration (UKVI) applications were made by post or in-person at a Public Enquiry Office, an applicant was required to physically hand over their passport. The issues around international travel were largely resolved due to the impracticality of getting the passport back. Now, with applicants retaining passports and the digitalisation of some application processes, the issue of where an applicant is and when seem to take on more of a technical character than a practical one.

As a first step immigration advisers often have to contend with where the applicant is physically located when the application is submitted.

If an applicant applies using the UK Immigration: ID Check app for permission to stay, it is often presumed that the system is likely not so sophisticated as to puzzle out their current location if they were to submit whilst outside the UK. Nevertheless, any permission granted would strictly not be correctly issued in accordance with the immigration rules (for example for Skilled Worker applications, see Rule SW1.5).

EEA nationals applying outside the UK using the app are required in most instances to apply in a country where they are lawfully resident (see paragraph 28 of the immigration rules). But if they happen to be holidaying somewhere abroad (or are even in the UK, some surmise) when they click the submit button the application may also be unlikely to run into a problem.

Those applying in the UK have a burden imposed on them that says they cannot leave the UK until a decision on their application is made. Seeing applicants struggle in genuinely compassionate and compelling circumstances to get UKVI to expedite their applications before they rush to leave the UK for a family emergency is a stressful and jarring experience.

Last month Alex posted about the ways applicants can ‘upgrade’ or vary a visa application whilst they are waiting for a decision to be made if they need to travel as a matter of urgency.

Applying outside the UK and travelling to the UK

Non-visa nationals applying outside the UK can travel to the UK whilst their immigration applications are pending, for example as a visitor (subject to meeting the visitor rules). However, the procedural inflexibility of current legislation requires these individuals to leave the UK and re-enter at the start of their visa. This is in effect to ‘activate’ their new status. This also holds true even if they have an eVisa rather than a vignette in their passport.

Applying in the UK and travelling after submission

Prior to recent changes, there was an element of uncertainty as to when the restriction on travelling outside the CTA kicked in, if at all: whether from the moment of submitting the online application or from the time that an applicant attended a biometric appointment.

The changes made to paragraph 34K of the immigration rules on 6 October 2021 tidy this up. From the moment someone applying in-country submits their online application form they should not travel outside the CTA. UKVI’s caseworker guidance ‘Validation, variation, voiding and withdrawal of applications’ confirms:

“If an applicant has applied for permission to stay and travels outside the [CTA] before a decision has been made on their application, you must treat the application as withdrawn on the date the applicant left the CTA.”

This is pretty clear-cut and it seems obvious that applicants must not travel when they have a pending application. However, when it comes to the implementation of the rule, the immigration system has, in practice, been more forgiving.

The risks of travelling after submission in the UK

It is rare for UKVI to treat an application as withdrawn due to someone’s travel outside the CTA. Sometimes it appears that UKVI is not enforcing the rule much at all. Their systems are not currently so efficient as to automatically treat applications as withdrawn following someone’s travel outside the UK. But that could change now that the Home Office has started to implement plans for a fully digital border. 

In the meantime, issues appear to have only arisen from time to time when an applicant has to interact with an immigration officer upon their return to the UK. Understandably visa nationals who leave the UK will more likely encounter problems. For those who enter via the eGates with valid permission and who are extending their permission, or for those who travel back once a decision on their application has been made, the actual risks of their application being considered withdrawn appear to be low.

It seems uncontroversial that permission granted even once someone has left the UK whilst the application was pending, is valid.

Of course, nightmare scenarios are still possible, even if less likely these days. If an individual leaves the UK and UKVI discovers that they are travelling whilst their application was pending and withdraws the application, several scenarios are possible. If they are a visa-national, they may not be able to re-enter the UK. If they are a non-visa national they would enter the UK as a visitor and may breach visitor conditions by returning to work, for example. At some point in the future, subsequent applications may also be affected by the breach or period of time in the UK as a visitor.

The gap between UKVI’s processes and the rules has grown significantly over recent months. Applicants must comply with the law, and it is surprisingly clear in what it requires, even if the dire consequences feared by applicants and advisers might often be more theoretical than actual. As the UK implements its digital border plans, some of the more illogical rules could be removed.