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Business Immigration Solicitors

How to ensure your immigration application is valid (18 December 2018)

Date: 18/12/2018
Duncan Lewis, Business Immigration Solicitors, How to ensure your immigration application is valid

It is important when submitting an immigration application to comply with all the requirements. The implications of not making a valid application can have disastrous consequences which could lead to you becoming liable to detention and removal as an overstayer. Moreover, this could also have an adverse effect on future applications.

To ensure you make a valid application it is necessary to follow the requirements set out in paragraph 34 of the Immigration Rules. Applications are mostly required to be made online now, however the Home Office guidance has not yet been updated.

If your immigration application does not meet the requirements, as shown below, it would be deemed invalid and not be considered (Para 34A Immigration Rules). This is subject to Para 34B which states:

‘Where an application for leave to remain does not meet the requirements of paragraph 34(1)-(9), the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification.’

This is a discretionary power which must be exercised fairly by the Secretary of State; failing which, the decision would be open to challenge by way of Judicial Review. Following Para 34B (2) of the Immigration Rules, in circumstances where you have made an invalid application and an opportunity to rectify the error has been given, and the you have still failed to comply, there is a discretion for the Secretary of State to treat the application as valid if you have paid the correct fee and provided a proof of identity.

Unless a valid immigration application is submitted before leave expires, Section 3C of the Immigration Act 1971 will not operate to prevent you from becoming an overstayer. Following the Supreme Court case of R (on the application of Mirza, Iqbal and Ehsan) v Secretary of State for the Home Department (2016) an application that is procedurally defective will not engage Section 3C. This means that if you have not submitted a valid application, before your leave expires, you will be considered an overstayer and will be at risk of detention and removal.

The essentials when making an immigration application include:

  1. Application form
    1. Make sure you use the specified and correct application form depending on the category of immigration application. This can be found on the Home Office website. The form may be online or paper. You may submit the form online, or complete it on paper and send it via post.

    2. If a paper form is used it is vitally important that the current version is used and sent to the address shown on the application form by post or courier.

    3. It is also imperative that all mandatory sections on forms are duly completed.

    4. With online forms there is a safety net to some extent since it is not possible to submit the form unless the mandatory sections are completed.

    5. Please note, where the applicant is under 18, their parent/legal guardian must give consent for the application to be submitted.

  2. Application Fee
    1. If you do not pay the correct fee, the application may be treated as invalid/ rejected. (On occasions, you may be asked to pay the correct fee which must be paid within 10 days of any such request, or the application will be rejected as invalid).

    2. It is always highly recommended the correct fee is paid when the application is submitted. With most applications now being made online, it is important to request the specified fee for the type of application being submitted.

  3. Evidence of Identity
    1. As an applicant, you must provide proof of identity which is normally a valid passport. It is possible to submit another form of proof of identity if a passport is not available.

    2. There are situations which can be found in paragraph 34 (5) (c )Immigration Rules where it is not necessary to provide proof of identity, for example where the Home Office already has your passport and where good reason is demonstrated.

  4. Immigration Health Surcharge (IHS)
    1. It is important and necessary to pay the Immigration Health Surcharge when required.

    2. This payment can be made online, prior to sending a postal application (if relevant) where the IHS reference number must be provided.

  5. Follow guidance on process, application and biometrics requirements as set out by UKVI
    1. The guidance must be followed and the necessary biometric information will be enrolled at the applicant’s appointment at the Visa and Citizenship Service Centre.

    2. The system now pushes you to book as soon as possible and provides the latest date the appointment can be booked.

    3. It is important to note that the new requirement to provide any evidence requested by the Secretary of State in support of your application is concerning since the online mandatory document list may not mirror the requirements of the Immigration rules. Time will tell how this will be interpreted in terms of making a valid application.

At Duncan Lewis we specialise in all Immigration applications and are happy to talk to those interested in making an application. If you wish to learn more about this ever changing area of law, please contact Ayan Yalchin Director of Private Immigration/Business Immigration on 020 7275 2011 or at ayany@duncanlewis.com, or any member of the Duncan Lewis Immigration team.

Duncan Lewis Immigration Solicitors

Our Immigration department is ranked as a top-tier practice in Immigration: human rights, appeals and overstay matters in The Legal 500 2019.

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As leading immigration specialists we advise on business immigration, right to work in the UK, Tier 2 visa applications, student/graduate visas, spousal visas and visa overstays. We are also able to advise businesses and individuals on any changes to UK immigration law during Brexit negotiations and after 29 March 2019, post-Brexit.

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