Last month, the Immigration Law Practitioners Association applied for judicial review of the new rules over immigration applicants. The move prompted the Home Office to undertake its current review of the relevant rules and forms.
The reason for the association's application lies in the history of the rule changes. On 2 April 1996, the Home Secretary laid before Parliament a statement of changes in immigration rules. This introduced a requirement that all applications for extensions of leave to remain in the UK made to the Home Office had to be made using new forms.
The change, which came into effect on 3 June, may not seem remarkable and could well be regarded as a positive development which would simplify and streamline the process of considering and making decisions on such applications.
However, there is a very nasty sting in the tail. The new rules stipulate that unless an application has been properly completed and signed, and is accompanied by originals of all relevant documents, it will not be regarded as valid.
A document processing centre has been set up at the Home Office to check whether applications are valid. If applications do not comply with the new rules they will be rejected and no application will be regarded as having been made.
If a valid application for an extension is not submitted until after the applicant's current leave to remain has expired, he or she will lose the right to appeal against a refusal.
The practical implications of the new rules include:
in cases where an application is made at the last minute, it will no longer be possible to submit a holding application by letter or fax and subsequently supplying all the necessary information and documents;
if a last minute application is rejected as being invalid, it is likely that by the time a valid application can be submitted the applicant's leave to remain will have expired. If the application is then rejected, the loss of the right of appeal could give rise to a negligence claim and will render the applicant liable to prosecution as an over stayer. Particular difficulties are likely to occur where the specific documents required by the form are unavailable or can only be issued by third parties which may be unable or unwilling to comply with the time constraints concerned;
the preparation of applications must be initiated earlier, to ensure everything is ready before leave to remain expires;
businessmen and work permit holders who need to travel while an application is being processed will be seriously hindered. It will no longer be possible to submit a photocopy of a passport, retaining the original for travel purposes until a decision has been made on the application. If it is necessary to request the return of the passport for the purpose of travel, the application will be deemed to be withdrawn, as is presently the case, and the applicant will usually be given a travel extension of three months;
after the applicant has been abroad and returned it will not be possible simply to re-submit the passport. A new application must be made on a new form. The only consolation is that the new application will not go to the bottom of the pile – it will re-enter the system at the same place where the original one would have been;
the forms need to be signed personally by the applicant. They cannot be signed by a representative or other person acting on his or her behalf;
the forms contain a declaration that the information given is complete and true and that applicants will pass to the Home Office details of material changes in their circumstances and any new evidence.
Several groups are exempt from the requirements; European Economic Area (EEA) nationals and asylum seekers do not have to use the forms. Applications for work permit extensions also do not need to be made using the forms. These should be made on a separate form to the Overseas Labour Service of the Department for Education and Employment.
Any applications made to the Home Office for settlement, such as the grant of indefinite leave to remain, will need to be made on the new forms, including those people whose claim to settlement arises from being a work permit holder.