December 3, 2019

Leave to remain application date: how to calculate it and why it is important

Being late with submission of an application to extend your visa?
You’ve left extending your visa until the last minute and are now in danger of missing the deadline.
Does this matter and is there anything you can do about it?

The answer to the first question is a resounding yes. Fortunately, in most cases, the answer to the second question can also be yes. For all of their issues, the introduction of online applications forms allows migrants in danger of running out of time to buy a little breathing space. The extension application can be made online, fixing that as the legal date of application, and the appointment needed to finalise things booked for a later date.

This post explains the concept of an application date in immigration law, how to calculate it, and why making an application online can help beat the deadline.
Why is the date of an application for leave to remain important?

Knowing the legal date that an immigration application has been made on is important for a number of reasons.

The most obvious one affects those who are applying to renew their leave. People in this situation must submit their application before the expiry of their current leave to avoid becoming overstayers, and therefore losing the right to work, the right to rent, and, these days, potentially their bank account or driving licence. If, on the other hand, they submit a valid application before the expiry of their leave, the terms and conditions of that leave will continue until a decision is made on the application (section 3C of the Immigration Act 1971).

The date of application is also important to those who want to rely on paragraph 39E of the Immigration Rules. This allows for a period of overstaying to be overlooked when:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

For some types of applications, the date of application is also relevant in assessing whether the documents submitted in support of the application are up to date. For example, under Appendices FM and FM-SE of the Immigration Rules, which apply to partners of British citizens or those settled in the UK, bank statements and other financial documents must end no earlier than 28 days before the date of the application.
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Another reason relates to the specified forms that must be used for postal applications to be valid. Although very few applications are now submitted by post, those forms are regularly updated. Generally speaking, an application will only be valid if the form submitted is the one published on the gov.uk website at the date of the application. (There is an exception, found at paragraph 34(1)(c) of the Immigration Rules, which allows applicants to rely on a previous version of the form as long as “it is no more than 21 days out of date”.)

This is one reason why the introduction of online application forms has been useful — there is no danger of using an out of date application form as it is automatically updated online.
How to calculate the application date for a leave to remain application

The answer is found at paragraph 34G of the Immigration Rules. The date of an application for leave to remain submitted from inside the UK depends on how the application is made:

where the application form is sent by post by Royal Mail, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
where the application is made via the online application process, the date on which the online application is submitted; or
where an applicant has made a fee waiver request, the date of application for further leave to remain will be the date the fee waiver application was submitted, as long as the application for further leave was submitted within ten days of receiving the decision on the fee waiver application. This is to avoid applicants requesting a fee waiver from becoming overstayers while the fee waiver application is decided.

So for online applications, the situation is pretty straightforward: the legal date of application is the date the application was submitted online.

For applicants trying to identify a historical application date, it may still be worth knowing what the position was when Premium Service Centres — previously known as Public Enquiry Offices — existed. Where the application was completed on a paper form, the date of application was the date of the appointment at the Centre.
Case study: postal applications

David had leave to remain as a parent of British children. He completed the paper application form FLR(P) and sent it by Special Delivery on 22 May 2018. The date of application was 22 May 2018, as it was the date of posting as shown on the tracking information provided by Royal Mail.

If David had completed the paper application form FLR(P) and attended an appointment at the premium service centre on 22 May 2018, the date of application would have been 22 May 2018, when he attended his appointment with the paper application form.

If David completed the paper application form FLR(P) and sent it by courier on 22 May 2018, and the application was delivered on 23 May 2018, the date of application would have been 23 May 2018, when it was received by the Home Office.

If David submitted his application form online on 21 May 2018, that would be the date of the application, whether David then decided to book an appointment to submit his application at the premium service centre, sent the form by post or, nowadays, went on to enrol his biometric information at a Visa Application Centre or Service and Support Centre.

Finally, if David made a fee waiver request on 22 May 2018, and the Home Office agreed to waive the fee on 15 June 2018, he would then have ten days to submit the form. Let’s say he did that on 20 June 2018. The date of application will still be considered 22 May 2018, when he submitted the fee waiver request. If the date of application was considered to be 20 June 2018, David would become an overstayer despite taking action before the expiry of his leave, which would of course be grossly unfair.
The advantages of online applications

The overwhelming majority of applications for leave to remain in the UK can now only be made online. In fact, to the best of my knowledge, the only applications that remain paper applications are:

Form FLR(GT), for survivors of the Grenfell tower fire or others directly affected by the fire
Form FLR (P), for children of relatives who have leave as refugees or humanitarian protection
Form DDV, for those in the UK as partners of British or settled citizens, who need to access public funds before they can apply for indefinite leave to remain as victims of domestic abuse

The introduction of online applications has brought with it a number of advantages (besides avoiding illegibility for bad handwriting!). In particular, it gives the applicant more control over the date of the application.

Perhaps the point is best explained by way of example.
Case study: online applications

It is 20 May 2019. David’s leave is due to expire on 23 May 2019. David has a trip planned on 10 June. In addition, David must submit bank statements to show that he meets the financial requirement, but they are only due to reach him on 24 May.

Before online applications were introduced, David would have been in a difficult position. He would have needed to either post his application or attend a Premium Service Centre before 23 May. If posting the application, he would have needed to send his passport and it is unlikely his application would have been decided and his passport returned before 10 June. If attending a Premium Service Centre, David would have needed to submit his bank statements at the appointment and the application would have been refused without them.

Nowadays, David can apply online before the expiry of his leave. Let’s say he did that on 22 May 2019. That is the date of application and prevents him from becoming an overstayer.

After his application has been submitted, David must book an appointment at a UK Visa Application Centre, where he will enrol his biometric information and his passport and documents will be verified, before being handed back to him. David can book his appointment for, for example, 25 May 2019, when he will have received his bank statements. The date of application being the date he submitted his application online, and not the date of his appointment, David continues to have valid leave to remain in the UK.

If David does want to travel on 10 June, he would be well advised to pay for the Super Priority Service (an eye-watering £800!), which should mean that a decision is made by the end of the working day after his appointment.

Although the Visa Application Centre won’t retain David’s passport, if he travelled with it before a decision were made on his application, his application would be considered withdrawn, and he would not be able to re-enter the UK as he would no longer have valid leave.

In short, submitting applications online allows applicants like David to:

Ensure that they have submitted an application before the expiry of their leave, as the date of the application is the day they submitted the application online
Gain time to finalise required paperwork such as bank statements
Travel on a date that falls just after the expiry of their leave

Of course, the best advice remains to prepare and submit an application well in advance! But for those who let time get away from them for whatever reason, the introduction of online applications has allowed applicants to buy some breathing space.

This article was originally published in June 2018 and has been updated to take into account of the increase in online application routes since then. It is correct as of the revised publication date.

November 29, 2019

Why has my UK visit visa been refused?

What is a ‘genuine visitor’?

A prospective visitor to the UK must satisfy the entry clearance officer that they are a ‘genuine visitor’, and will meet the immigration rules governing visits to the UK. The following (from the Home Office Guidance) are the questions which will be asked in assessing whether the applicant is a ‘genuine visitor’:-

“if the applicant is a genuine visitor:

do they intend to undertake permitted activities and leave at the end of their stay
are you satisfied they will not be living in the UK or making the UK their home through frequent and successive visits
will they be doing any prohibited activities
do they have sufficient funds, maintenance and accommodation for the duration of their stay”

Common reasons for refusal of a UK visit visa application

The following sets out common reasons for refusal based on assessing whether the applicant is a ‘genuine visitor’ based on the above criteria:-

“Do they intend to undertake permitted activities/will they be doing any prohibited activities …?”

Purpose of the visit

Lack of detail about the purpose of the visit may lead to reasons for refusal which either question the length of the visit or the plans which have been made for the visit, including arrangements made for accommodation. If the reason for the visit is not clear, there may be an assumption that the applicant is not being candid about wishing to come to the UK just to visit. The permitted/prohibited activities referred to generally mean taking up employment (paid or voluntary).

Finances

Reasons for refusal which question the applicant’s finances are likely to be rooted in the concern that the applicant may not be intending to visit but rather is intending to work – working is prohibited for visitors except in very limited circumstances.

The reasons for refusal may challenge why an applicant’s employer has agreed to the length of the visit (is the employment at home real, or will the job be lost after such a long absence?), or why an applicant would spend the whole of their savings or so much of their income for the visit, or whether or not the funds belong to the applicant. The origin of funds deposited in a bank account may come into question, and entries on bank statements in particular may be queried. It is therefore important to give straightforward and thorough information about all the financial elements of the visit, both in respect of how the visit will be financed (see below) and about the applicant’s financial affairs in their home country.

“(Do they intend to) leave at the end of their stay?”

“Are you satisfied they will not be living in the UK or making the UK their home through frequent and successive visits?”

The essence of a visit visa is that it is a visit – and that the applicant will return to their home country at the end of the visit. Frequent and successive visits will lead to considerations of broader questions about the applicant’s life in their home country and their travel history.

Ties to their home country

If an applicant has not indicated that they have active involvement with family and community in their home country, this may lead to an assumption that the applicant has nothing to return to and thus intends to remain in the UK, and a refusal for this reason.

Travel and immigration history

Considerations about whether the applicant has a ‘track record’ of visiting other countries, and the extent to which they have complied with the requirements of the visas issued for those countries (including during previous visits to the UK), may feature as part of the reasons for refusal. This reflects a concern that the applicant wishes to come to the UK for more than a visit, and will not leave at the end of the visit. The Home Office guidance clearly sets out what will be taken into account, and why:-

“A pattern of travel that shows the applicant has previously complied with UK immigration law may indicate the applicant is a genuine visitor. As might travel to other countries, especially the USA, Canada, Australia, New Zealand, Ireland, Schengen countries or Switzerland.”

Reasons for refusal from previous applications also are often repeated where there has been no reference to a change in the circumstances which led to the refusal.

Too many visits to the UK

These refusals generally concern longer-term multiple visit visa holders, but will be attracted by applicants who have not provided evidence of the reason/s for visiting the UK for successive or lengthy periods within one year or successive years.

“Do they have sufficient funds, maintenance and accommodation for the duration of their stay?”

Such refusals can include questions about a sponsor’s ability to provide sponsorship for the visit. Refusals may occur where straightforward and detailed evidence has not been provided about the funding for the visit, the costs of the visit (food, accommodation, travel within the UK etc) and what funds are available to the applicant from his or her own resources to meet these costs. If detailed information about the finances available for the visit is not provided, a conclusion that the applicant intends to work in the UK or seek access to public funds may be drawn.

Can previous visit visa refusals be overcome?

A fresh application following a visit visa refusal must deal with the concerns raised in the previous reasons for refusal, as discussed above. In addition, providing straightforward evidence with the fresh visit visa application using the visit visa rules, should satisfy an entry clearance officer or border official that the applicant is a ‘genuine visitor’ notwithstanding previous refusals.

November 28, 2019

Long Residence ILR: Continuous Lawful Residence

This is a case law on overstaying and applying for settlement, also known as indefinite leave to remain (‘ILR’), on the basis of 10 years of residence in the United Kingdom. This post will summarise the current landscape of case law addressing the continuous lawful residence requirement, before moving on to consider the updated Home Office Guidance on Long Residence.

The Immigration Rules on Continuous Lawful Residence

The key requirements regarding lawful residence in the UK can be found in the following paragraphs of 276B of the Immigration Rules:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i)

(a) he has had at least 10 years continuous lawful residence in the United Kingdom.

[…]

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

For most applications, what is relevant is that paragraph 276A(b) defines lawful residence as residence which is continuous and pursuant to existing leave to enter or remain. Therefore, it is important to determine when you actually had leave to enter or remain. This becomes particularly tricky in periods when you had a pending application, appeal or administrative review. In my previous post, I considered the circumstances in which section 3C could extend leave, or paragraph 39E applied if an application was made out of time.

The First Ahmed Case – Disregarding current overstaying doesn’t mean you’ve accrued 10 years

In the case of R (on the application of Juned Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC) considered in depth here by my colleague Alex Papasotiriou, the Upper Tribunal held 276B(v) to be freestanding and additional to paragraph 276B(i)(a). This means you must have at least 10 years of continuous lawful residence in the UK without counting any periods overstaying.

Essentially, this case affects people who tried to apply for ILR after their leave had expired; this could be the expiry of their visa, after their appeal rights are exhausted, or following a refusal or unsuccessful administrative review. They are overstayers at the date of application.

In Juned Ahmed, it was said that if you have accrued 10 years of continuous and lawful residence prior to your application, and if 39E applies to you, you can rely on 276B(v) and your application will not be refused. However, if you apply before you have accrued 10 years of continuous lawful residence, the period of overstaying (unlawful residence) while your ILR application is pending, will not be added to your prior period of lawful residence to assist you in reaching 10 continuous lawful years.

For example, you entered the UK on 1 January 2009 and you always applied for extensions before your leave expired, but your application was refused on 1 December 2017 with an in-country right of appeal. You appealed in-time and throughout the pending appeal your leave was extended by virtue of section 3C. On 1 January 2019, if your appeal was not finally determined, you had acquired 10 years of continuous lawful residence. However, if your section 3C came to an end on 1 December 2018 when you became appeal rights exhausted, applying for ILR on the basis of long residence on 14 December 2018 would not mean you had acquired 10 years of continuous lawful residence. The current overstaying will not be disregarded in the sense that it makes the period in which you are currently overstaying lawful. You would still be several weeks short of 10 years.

This was the first case in which the courts’ interpretation of paragraph 276B made long residence applications more difficult.

The Second Ahmed Case – any prior overstaying will break lawful residence

The Court of Appeal in a decision on permission to appeal, decided to further narrow paragraph 276B with their interpretation. Unfortuitous as it may seem, this case also related to an appellant with the surname Ahmed: R (on the application of Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070. We consider this case in depth here.

In summary, it was considered that although previous periods of overstaying were excepted (where 39E applied, or prior to 24 November 2016 where the application was made within 28 days), the application of the 14-day or 28-day grace period did not convert these periods into lawful leave to remain.

Continuing our example above, if you entered the UK on 1 January 2009, and at one point in 2014 made an application 20 days after your leave expired, which was subsequently granted, those 20 days of overstaying would break your lawful residence, regardless of the fact that making it 28 days out of time was then permitted by the Rules, and you were subsequently granted further leave to remain.

In Masum Ahmed, the Court of Appeal indicated that the Home Office’s Guidance which then stated on page 16 that, “gaps in lawful residence” can be disregarded because ‘the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016’ was far more generous than their interpretation of 276B and that the ‘SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy’.

However, their interpretation was said to have been based on ‘applying ordinary rules of statutory construction and the presumption of ideal, rational legislation’, and therefore ‘differences in drafting should not be read as accidental or unintended’. This did not sit well with many immigration practitioners who struggle on a daily basis with inconsistent drafting within the Immigration Rules, which are far from a tightly drafted statute.

Home Office Guidance on continuous lawful residence

In light of all of the above (still good) case law, it may come as a temporary relief to note that despite the warning from the Court of Appeal, the new Long Residence Guidance published for Home Office staff on 28 October 2019 maintains the long-standing application of paragraph 276B. For example, on page 16 it states under ‘Gaps in lawful residence’:

You may grant the application if an applicant:

has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
meets all the other requirements for lawful residence

The examples of gaps in lawful residence are also helpful:

Example 1

An applicant has a single gap in their lawful residence due to submitting an application 17 days out of time. All other applications have been submitted in time, throughout the 10 years period.

Question Would you grant the application in this case?

Answer Grant the application as the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016

Example 2

An applicant has 3 gaps in their lawful residence due to submitting 3 separate applications out of time. These were 9, 17 and 24 days out of time. Question Would you grant the application in this case?

Answer Yes. Grant the application as the rules allow for periods of overstaying of 28 days or less when that period ends before 24 November 2016.

For now, if the Home Office apply their own guidance, gaps of overstaying where applications were made no more than 28 days out of time pre-24 November 2016, or 14 days after that date if 39E applies, should not break the lawfulness of the continuous residence.

However, watch this space for further developments in case law or guidance.

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