Updates, commentary, training and advice on immigration and asylum law
Tweaks to the Immigration Rules on validity, variation and withdrawal
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These provisions may not be the sexiest part of immigration law but they are worth paying attention to. Falling foul of a procedural rule can often be as devastating to a visa application as a failure to meet the substantive requirements. In some cases, it can even do more damage.
With that in mind, we’ll cover even the very minor changes, if only as a reminder that the relevant rules exist and can be important.
Paragraph A34 lists all the visa categories to which the general validity requirements in paragraph 34 do not apply because they have their own category-specific requirements. It has been amended to include several new routes:
- Settlement Protection
- Graduate (a bit late…)
- International Sportsperson
The amended provision now also reflects the rebranding of the “T5 (Temporary Worker)” categories as the slightly catchier “Temporary Worker” routes.
Paragraph 34C receives a minor amendment that clarifies more than alters the status quo. It now reads (changes in red): “A dependent applicant can be included on a main applicant’s application form where the application form allows the dependant to be included. Otherwise, a dependent must make a separate application“.
Skipping right over the opportunity to finally put paragraph 34D (“34D. DELETED”) out of its misery, paras 34E – 34K have been replaced with new versions.
Paragraphs 34E and 34F contain the rules for varying a pending application. The new versions are virtually identical, except being slightly clearer and employing the new “permission to stay” language consistently:
34E. If a person wishes to vary the purpose of an application for permission to stay, the variation must comply with the requirements of paragraph 34, or the validity requirements for the route now applied for (if different), as if the variation were a new application. If it does not, subject to paragraph 34B, the variation will be invalid and will not be considered.
34F. Any valid variation of an application for permission to stay will be decided in accordance with the immigration rules in force at the date the variation is made.
Similarly, new paragraph 34G, which deals with the date of application, is identical except that that the final subsection (which never belonged in this paragraph) becomes paragraph 34GA:
34GA. Where an application is rejected as invalid that decision will be served in accordance with Appendix SN.
Then there is an important new addition. It clarifies that the date of application (for the purposes of things like section 3C leave) of a variation application is the date of the original application:
34GB. Where a variation application is made in accordance with paragraph 34E, the date the variation application (the new application) is made is deemed to be the date the application was made prior to it being varied (the old application).
Although this was always the case, it is helpful to see it confirmed. The wording of “new application” and “old application” is also a welcome addition because it provides further support for the view that an application can be validly varied before the enrolment of biometrics, as each “application” in a chain of one or even two variations is seen as a separate application when it comes to the validity requirements.
Finally, we have a new rule for dependants at the variation stage:
34GC. Where a partner, child or other dependent is included in the variation application (the new application) and was not included in the application which has been varied (the old application) the date of application for the dependant’s application is the date the variation application (the new application) was made.
This is a slightly esoteric provision. I must confess that I have never needed to add a dependant to a variation who was not included in the original application, in large part because dependants are usually granted permission in line with the main applicant, so they would usually have to make an application at the same time as the main applicant. Still, the additional clarity is welcome.
The existing rule that the Home Office does not have to agree to the withdrawal of an application, and can instead go ahead and decide it, has now been codified in the Rules. Previously it was only found in guidance.
34H. An applicant may ask to withdraw their application for entry clearance, permission to enter or permission to stay at any time before a decision is made on the application by making a request in writing or by completing the withdrawal process at www.gov.uk/cancel-visa. If the request to withdraw the application is accepted the date of withdrawal is the date on which the request was received by the Home Office.
34I. There is no requirement to agree to the withdrawal of an application for entry clearance, permission to enter or permission to stay and the decision maker may instead decide the application.
In practice, I would expect the status quo — i.e. no real attempt to decide any withdrawn applications — to continue.
Perhaps the biggest change – at least in law, if not practice – comes from a new provision concerning travel outside the UK while an application is pending:
34K. Where a decision on an application for permission to stay has not been made and the applicant travels outside the common travel area their application will be treated as withdrawn on the date the applicant left the common travel area.
This is very much in line with what the Home Office has been doing anyway, but the old rule was worded so as to undermine the legal basis for treating applications as withdrawn in some cases. Specifically, the rule did not seem to apply to people who had never handed over their passport as part of the application, such as those able to scan it using an app. The Home Office thought that para 34K did, or at any rate should, apply in such cases. So it has now changed the rule to shore up the legal basis for treating all departures from the UK as withdrawing any pending application.
All of the above changes took effect from 6 October 2021. There are provisions for the application to be decided under the old rules if made before that date.
Finally, the category-specific validity rules for the Skilled Worker and Student routes are being amended to allow more people to apply entirely online. An app for ID verification will be available to non-EU nationals applying for those routes from within the UK; previously it was only open to EU nationals, You have to kind of squint to find the change in the drafting, but to quote the explanatory memorandum:
This change will enable in-country applicants with a Biometric Residence Permit in these routes (not only EEA nationals as currently) to make use of a digital application form, where available, that includes identity verification technology. People who use the form with inbuilt identity verification will also receive a digital status.
The final point is in line with a wider move to digitise immigration status, which I am sure will not result in any problems whatsoever.
This change will take effect from 30 November 2021.