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Happening Issues In Immigration Law (Online Course)

What is covered?

Developed by HJT Director Mark Symes. It’s hard to keep up with modern immigration law, which is:

– More complex than the laws of the Byzantine Emperors

– Features changes to the Rules more numerous than the buffalo which once populated the plains of North America

We address relevant considerations to take on board when preparing applications and in the context of the arguments that might be run via appeals, administrative or judicial review applications:

– Validity of applications

– The new Rules on overstaying and multiple applications

– “Genuineness” testing

– Evidential flexibility

– Administrative review

– Curtailment

– Demanding fair decision making

– Section 3C leave and overstaying

– Notice of decisions

– Non-suspensive appeals

– Long residence applications

Course Extract:

Validity of applications

The consequences of making an invalid immigration application can be very serious: eg

  • – Due to time passing, the next application can only be made after leave has expired and accordingly may face mandatory refusal for excess overstaying
  • – The individual enters the “hostile environment” for overstayers
  • – The application previously made may no longer be viable because some criteria of the Rules (such as level of funds shown by bank statements) are no longer met

The Rules deal with validity at Rule 34. In order to be valid an application must

  • – use the appropriate form (an old form can be used for up to 21 days after its successor form enters use (R34(1)(c))
  • – with every mandatory section completed,
  • – the fee and Immigration Health Surcharge must be made in full, proof of identity must be provided via a valid national passport or identity card (unless this, or their travel document, is held by the Home Office, or it has been lost or stolen and there is no functioning government to issue a replacement, or it has been retained by an employer where the applicant has been recognised as a trafficking victim, and various exceptions specific to the stateless, domestic violence victims, and persons granted international protection, or good reason beyond their control has been supplied: alternative satisfactory evidence may nevertheless be sought
  • – Two passport sized photos
  • – Written consent by parent/guardian if under 18
  • – Be sent by prepaid post to the appropriate address for postal applications or submitted in person at premium service centre, and if made online where an appointment is subsequently needed as part of the process, the appointment must be made and attended within 45 business days of submission
  • – Biometrics must be supplied in line with the letter requesting them and any subsequent warning letter

There is a process for the Home Office to consider validity:

  • – Under R34B, the Home Office may give one opportunity to correct the error(s)
  • – The flaw must be rectified within 10 working days of that notification being sent (the Guidance states that “normally” applications are treated as invalid thereafter)
  • – Flaws in the application, except those involving fee, identity and biometrics, may be waived by the Home Office
  • – Notification of invalidity is given under Appendix SN which provides for deemed service (see further below)
  • – An administrative charge of £25 per applicant may be retained when the application is refunded

The Guidance explains:

  • – A decision maker can use discretion and accept the application as valid if a mandatory section of the form is not completed but the required information is found elsewhere in the application
  • – If an applicant has not paid the correct fee, the Home Office must write to them and give them 10 working days to rectify their mistake and provide instructions on how to pay the correct fee
  • – Where the Home Office declare an application invalid on fee grounds, they must retain evidence and update the case record system – “evidence of payment pages are kept for 18 months by the Home Office and so reasons for failure to obtain payment can be investigated by referring to those pages”
  • – There are detailed provisions for addressing the situation where the fee is not sufficient to cover the position of all the dependents on the application
  • – The date of application is treated as that of the valid application where that follows the making of an invalid one; where the Home Office withdraws a decision to treat an application as invalid, then the application date is treated as being that of the original application

If you are dealing with the consequences of a decision to invalidate an application made some time ago, it will be necessary to search online for the relevant Guidance that was in place at the time a decision was rejected as invalid. For example here a link to the one that was in force for some time after 7 April 2015, which contains the enticingly general phrase

If an applicant has not sent all the mandatory documents, you must contact them or their representative, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. You must give them 10 business days to respond to your request.

Example                                                                                         

Anna makes an application for an extension of leave to remain. She forgets to include the payment details for her credit card authorisation. Her application is returned to her as invalid.

Anna’s application is invalid (R34(3)); this is a fundamental requirement which cannot be waived (R34B(4)).

James makes an application for an extension of leave to remain. He does not provide appropriately sized passport photos. His application is returned to him as invalid.

James’s application is invalid (R34(7)); the Home Office had a discretion to treat his application as valid (R34B(1)). If no consideration was given to that possibility, it may be that their decision could be challenged as unlawful. However as administrative review is not available with regard to invalidity decisions, judicial review would be the only route of challenge.

Multiple applications by the same Applicant

For some time there was a lack of clarity as to whether more than one application could be made at the same time – for example, an application for an extension of leave as an Entrepreneur asking for a particular requirement to be waived at the same time as an application on human rights grounds based on strong UK connections was provided.

Multiple applications are now forbidden under Rule 34BB. Thus:

  • – An applicant may only have one outstanding application extant
  • – A further application will be treated as a variation of the existing one
  • – If simultaneous applications are made on the same day, both are treated as invalid: however the Home Office may give an opportunity to withdraw one or both within 10 days of the notification of potential invalidity being sent

The Home Office Guidance on Applications for leave to remain emphasises that a single form cannot be used for multiple applications:

Example                                                                                         

John has made an application for further leave to remain as an entrepreneur which has been rejected. Unfortunately for him he cannot now satisfy the Rules via a new application because the third party support on which he was relying is no longer fully available. He has been present in the UK with a view to setting up and running his business.

John faces a quandary. Amongst his options will be applying for further leave as an Entrepreneur hoping that the criteria may be slightly relaxed in his favour. However, he might also apply on human rights grounds based on his strong private life connections with the UK. But he cannot make both applications at the same time: he has to choose which one is the most likely to get somewhere, and run with that for now. 

Genuineness, credibility and viability

Although when the routes were first addressed, the Points Based System Rules aimed to simply award points on an objective basis, over time a series of credibility and viability tests have been inserted into them.

For example, for students, Rule 245ZV addresses the requirements for entry clearance and amongst them we find this:

“(k) The Entry Clearance Officer must be satisfied that the applicant is a genuine student.”

There are similar provisions for entrepreneurs and investors (eg R245DB(f) for investors seeking entry clearance, R245DD(h) for entrepreneurs seeking leave to remain).

Genuineness is considered at the final stage of the process. The Rules make it clear that the Home Office reserves the right throughout the PBS to test an application for genuineness on a reconsideration even though the original refusal did not raise the issue: no doubt because it saves resources to refuse applications on simple “knock-out” grounds like missing documents without entering into this more complicated enquiry.

Refusals on these grounds will be based on the evidence that was before the decision maker. If the decision maker considers they require any information beyond that supplied with the original application, it will be necessary to request further documents or to hold an interview.

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