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December 21

2- Will the Home Office Delays affect me?


OTB Legal

How will the Home Office delays affect me? And how should I change my approach to an application?

It’s time for the second article in our series on Home Office delays. Yesterday’s article provided information on the types and lengths of delays that we are seeing, tomorrow we will be writing about resources and strategies you can use to try and get a result.

Today’s article sets out what the legal effect of a delay to your application will be and how this should affect your approach when making a visa application.

S3C leave

The first question clients currently in the UK ask us when discovering the delays is “what happens when my existing visa expires?” The good news here is relatively little will happen. If you have submitted your application validly, and before your current visa expires, you will move onto s3C leave. S3C leave is an automatic extension of your current conditions of leave to remain until you receive a decision on your new application. For example skilled workers that are applying to extend their visa with their current employer can continue to work as normal until they receive a decision. Students who are extending their visa for further study are subject to a special exemption that allows them to continue studying within the limits of their new CAS.

Similarly students who have completed their course and are moving to a skilled worker visa or a graduate visa may now begin work for their new employer before their visa is granted.

Where this can be more complicated is for those applying for a skilled worker visa with a new employer or those switching between different visa routes. In the cases of skilled workers these individuals must not begin working for their new employer until their visa has been granted. In the cases of those switching to new routes, they will be bound by their existing visa and will not benefit from the conditions on their new route until the decision has been reached.

While s3C leave protects an individual’s legal rights and residence in the UK, as you will see above the period can also leave applicants in limbo in terms of work rights while waiting for the Home Office to reach a decision.

Travelling with a pending application

Another common factor to consider is travel plans. If you are applying for entry clearance outside the EU, or applying for certain visas from within the UK, you will need to submit your passport for processing while your visa is being decided. In order to travel you would need to request this passport be returned. Doing so has the effect of withdrawing your application.

We often get questions from those who hold dual nationality, who pay extra to retain their passport during processing, or who have submitted their application using the UK:ID app (and therefore did not need to attend an appointment) asking whether they can travel as they have a passport that they can use.

Even in these cases we strongly advise our clients against travelling while they have an outstanding visa application. The Immigration Rules make explicitly clear that, for applicants applying for permission to stay, the use of a retained passport to travel outside of the common travel area is treated as withdrawing the application.

While this rule does not mention entry-clearance applications, the Home Office require applicants to stay at their registered location during processing in case they need to be reached for further information. Using a retained passport to travel between countries creates a risk that the Home Office will treat your actions as an indication that you have withdrawn your application.

When to submit an application

The factors above, combined with the ever increasing wait times, is incredibly disruptive for applicants. We have heard from clients who are unable to travel for work, are unable to attend weddings, to witness the birth of family members, or to visit ailing relatives.

While these delays are not the fault of applicants, it is more important than ever to be organised about when you make your application. Where possible, we advise that people undertake critical travel before submitting their applications. We have often worked with clients to prepare applications in advance and then to submit the application as soon as they have re-entered the UK.

In most cases extensions can be applied for 28 days before the visa expires. For sponsored work and study applications, and entry clearance applications, the application can be submitted up to three months in advance of the start date.

Traditionally, people have taken the approach of applying for extensions as late as possible to ensure periods of continuous residence are maximised. However, in recent months we are seeing clients apply earlier within the application window in order to minimize the effects of the disruption.

This applies equally to entry clearance applications. Skilled workers and students with enough advance warning of when their respective work or study begins are applying as early as possible to minimise the risk that their start dates would need to be delayed.

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