Applicants submitting an immigration application from inside the UK can keep their passport whilst the application is processing. But there are risks if they want to travel outside the Common Travel Area. We take a look at these.
To submit an application from within the UK, applicants must normally complete an online application, agree to a declaration and pay the associated fees, including the application fee and Immigration Health Surcharge (IHS).
There are a number of paper forms remaining, but these are in the process of being phased out.
Generally, after submission, applicants are required to submit their biometric details. Normally, applicants must book an appointment with UK Visa and Citizenship Application Services (UKVCAS) operated by the third party, Sopra Steria. At the UKVCAS appointment, applicants have their fingerprints scanned, submit their signature and have a photograph taken. They should also bring with them their current passport (and not just a copy), which will be scanned and returned to the applicant at the appointment.
Under the new IDV app process for Students and Child Students the steps are more straightforward. This is because the applicant can provide a picture of their passport through the app and does not have to attend a biometric appointment.
The Immigration Rules
Paragraph 34(5) of the Immigration Rules (HC395, as amended) states that in order for an application for leave to remain to be ‘valid’, the applicant must ‘provide’ proof of identity in the manner specified in the application form. There are some exceptions to this, such as when the Home Office already holds the proof of identity, for example, if an application has been made to vary an already submitted application.
Paragraph 34G confirms that the date on which an online application is ‘made’ is the date the application is submitted. It is not normally possible to submit an application until the relevant fees are paid, if required.
Under paragraphs 34J and K of the Immigration Rules, an application is considered withdrawn when:
’34J. The proof of identity provided under paragraph 34(5), or any other application for leave to remain, will be returned to the applicant whilst their application is being considered, unless the Secretary of State considers it necessary to retain it. Where the Secretary of State has retained an applicant’s proof of identity and the applicant requests the return of their proof of identity for the purpose of travel outside the common travel area, the application shall, provided it has not already been determined, be treated as withdrawn on the date that request is received by the Home Office.
34K. Where proof of identity provided under paragraph 34(5), or any other application for leave to remain, has been returned to the applicant pending a decision on their application for permission to stay and the applicant travels outside the common travel area their application shall, provided that it has not been determined, be treated as withdrawn on the date that the applicant left the common travel area’.
The Common Travel Area (CTA) is defined as the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland.
Therefore, if an applicant intends to leave the CTA after submission of their online application and before a decision is made, there is a risk of the application being withdrawn.
Risks caused by the new process
When all applications used to be submitted on paper forms, the physical passport had to be provided along with the application. This meant that generally, travel was impossible. However, the Immigration Rules do not reflect the current reality – most applications are now submitted online and passports are retained by the applicant.
As a result, the Immigration Rules are unclear regarding the period between submission of the online application and the applicant attending the biometric appointment, when their passport is scanned.
If the application is not considered valid until proof of identity is ‘provided’ it could be potentially be argued that, until the date of the biometric appointment, the application has been ‘submitted’ but is not yet ‘valid’. However, in view of the potentially significant impact of a withdrawn application, we would strongly advise that applicants do not leave the CTA after submission of the online application.
Withdrawal of applications
If the Home Office does withdraw an application, that means the application will no longer be considered pending. If the applicant is relying on leave under section 3C of the Immigration Act 1971, this leave will also end.
Section 3C is activated when a person with valid leave to remain in the UK makes an in-time application to extend or switch their leave, and their current leave expires before the new application has been decided. During this processing period of their new application, they will continue to have the right to work and remain in the UK.
If a person with leave under section 3C has their application withdrawn, then they will have no valid leave under which they can re-enter the UK. This may, in the worst instances, lead to the individual being refused re-entry to the UK. This could also break their continuous residence period for a future Indefinite Leave to Remain (ILR) application and affect all future UK immigration applications.
In general, applications that are withdrawn before the individual attends the biometric appointment should lead to a refund of the application and IHS fees.
There are some exceptions to the travel rule. The main one is for those applying for naturalisation as a British citizen. In general, such applicants can still travel outside of the CTA whilst the application for naturalisation is processing, as long as they still have the intention of settling in the UK.
Another exception is for those making an application under Appendix EU for pre-settled or settled status. Under the EU Settlement Scheme caseworker guidance, if such applicants leave the CTA before the application has been decided the application will not be treated as automatically withdrawn.
The case for reform
Many of the Immigration Rules have been updated as part of the UK’s new immigration system and new additions are expected. But the rules in relation to travel during the application process are in desperate need of reform.
They were designed for a time when paper application forms and passports were submitted to the Home Office and the Home Office, in return, sent physical letters, rather than emails, as is common today.
The rules already need to be updated to reflect the immigration process of online forms and retaining a passport throughout the processing period. It is even less clear when a passport is ‘provided’ when using the IDV app and this should be addressed as a matter of urgency.
The restrictions on travel often serve little purpose in our view. During the disruption caused by COVID-19 and the long delays in processing applications, individuals who were desperate to travel outside of the CTA had to choose between their immigration status and visiting loved ones. Many are still waiting for decisions and are still stuck in this limbo.
The exceptions to the travel requirement in naturalisation applications and applications made under the EU settlement scheme demonstrate that applicants can still intend to stay and live in the UK, whilst travelling for work or family reasons during the, often long, processing periods. Such applicants can still be contacted by the Home Office whilst they are outside of the UK by modern forms of communication.
The restriction on travel is not particularly well sign posted in Home Office applications. The restriction is often inconsistently enforced and, in some cases, the Home Office is not aware of any absences until the applicant declares them in later applications.
The travel restriction has the potential to cause very real damage to applicants and their families. Surely, the best reform for the travel requirement must be to remove it all together.
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