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Bhogal Partners

02 Oct 2018

During the course of my training at the Firm, I have been involved in taking instructions from clients, especially within our immigration department. We often see clients wishing to submit visa applications on a daily basis. It is vital to explain to the client that for any application they wish to submit, they must meet and satisfy the Immigration Rules and criteria as set out under the current Home Office policy and guidance.

Documents required for each application

As a Firm, we look at each client and their circumstances on an individual and unique basis so we are able to provide a high level of service and achieve the best outcome for them. Whilst taking instructions from clients, we look at the background history and assess which documents may be relevant in support of their application.

The Home Office policy has now made it essential for each applicant to submit a valid form of ID such as an original passport. Without submitting an original passport, many applications are returned by the Home Office as invalid and rejected unless there is a genuine reason for not being able to submit any form of ID.

Under paragraph 34B of the Immigration Rules, the Secretary of State has the discretion to write to an applicant and provide them with 10 working days to remedy any omissions or deficiencies. But this situation should be avoided in the first place.

The Home Office also require original documents to be submitted in support of the application and each applicant must declare they are submitting genuine documents, true to the best of their knowledge.

Overstaying and out of time applications

We also owe a duty towards our clients to explain to them the importance of submitting an application prior to the expiry of their visa and keep the client’s best interest in mind. Usually, if an application is made after a client’s visa has expired, they will lose their section 3C leave and this will impact and affect their right to work, access to education, open bank accounts, rent a property and even drive a car: this may all cease until they receive a decision for their pending application.

It is extremely important to submit an application before their visa is due to expire. Other than under the 7-year, 10-year and 20-year applications that are assessed from the date of application, most applications can be made 28 days prior to the expiry of their current visa.

The old Immigration Rules provided applicants with a 28-day period of grace in which the applicant had 28 days after their visa had expired to renew their application without being deemed as an overstayer and thus penalised.

However, since November 2016 the Home Office rules and guidance have now become more restrictive and individuals are more likely to be penalised for submitting an out of time application.

Under Part 1, paragraph 39E of the Statement of Changes, the new grace period has a very limited time of 14 days and there must be good reason for submitting the application late.

The Home Office guidance for ‘good reason’ makes this route extremely strenuous and difficult to prove, resulting in applications being returned as refused and adversely affects any future applications for leave to remain in the UK. ‘Good reasons’ the Home Office may accept include reasons such as emergencies, being admitted to hospital or close family bereavements. However, there must be strong documentary evidence to prove this point.

The Minister of State for Immigration explained in Parliament that:
We are also abolishing the ’28-day grace period’, during which we currently accept out of time applications for a range of routes including work and study , to encourage greater compliance with the Immigration Rules. This will make clear that people must comply with the Rules and make any application for further leave before their current leave expires.

Clients must also be aware and understand the criminal consequences of overstaying in the UK without any form of valid leave. Under section 24 of the Immigration Act 1971 and 320B of the Immigration Rules, applicants may also be barred from re-entering the UK for up to ten years and will certainly have an impact on any future applications they wish to make from outside or within the UK.

Many have argued that the old Rules allowed a lot of leniency, especially for those that made a genuine mistake and therefore had a fair time frame within which to submit an out of time application.

This is why it is vital to obtain legal advice and to ensure that applications are made in time, with the correct documents. With that ethos our clients can enjoy their time in the UK without the worry and stress of not having any status to legally remain in the UK.

Amna Mirza
Bhogal Partners Solicitors