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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

Invalid applications for leave finally addressed by rule changes

31 October 2014 Immigration

Nestled within the voluminous recent statement of changes to the Immigration Rules is a relatively brief amendment to the process to be followed when an application for leave to remain may be invalid. The Home Office may now give 'the applicant a single opportunity to correct any omission or error which renders the application invalid.' The brevity of the amendment and the explanatory note belies the importance of this issue and the sheer misery it has caused in the past.

The perhaps tedious legal subject of application validity has always remained close to my heart because of my involvement in a case called Basnet. Which colleagues will tell you I rarely* mention.

Until now, if an otherwise valid application was lodged but with a single omission or issue it would be sent back to the applicant as invalid, but often weeks after the application was made. The issue with this was that it would prevent section 3C of the Immigration Act 1971 from having an effect, namely that a person's leave would then not be statutorily extended and a further application (assuming their existing leave had ended) would be made with the person considered to be an over-stayer.

In this way, a simple issue with the validity of an application could affect an individual's right to appeal, to work, or even to remain. It was a horrendously disproportionate consequence of often an extremely minor error. It is VERY significant that this has changed finally and a welcome amendment (for once).

Certainly my colleagues may be happy that this amendment might finally get me to shut up about Basnet and render that case irrelevant. They may be dismayed to know that as this amendment does not address the Immigration and Nationality (Fees) Regulations, Basnet might still actually be utilised in some circumstances, but hopefully this need will become far reduced.


* every week, despite the case being over two years old now


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