How to avoid making an invalid UK immigration application

John Donkersley looks at when the Home Office can return an immigration application as invalid and how to avoid this.

Published in

Adviser online

14 min readApr 21, 2021

All UK immigration applications have to be ‘valid’. This means that if there is some essential requirement missing then the Home Office won’t even consider it. They will reject it and send it back.

Only certain things are set as ‘validity’ requirements in the immigration rules. For instance, an application will be invalid if you’ve used the wrong application form, or not shown a valid passport. Other unmet parts of the rules, like those in the ‘eligibility’ sections, won’t lead to a rejection, but can lead to a refusal.

This article looks at what the validity rules are, the effects of rejection, the procedure and the exceptions.

Why ‘validity’ is both good and bad

Particularly if you’re applying in the UK, the rejection of an invalid application, without making a decision, can be both good and bad.

It’s good because:

the applicant only loses a small administration fee of £25. This is much better than losing the whole application fee that could run into the thousands on a refusal
if they still have valid leave then they can resubmit the application ‘in time’

An applicant can also withdraw their application at any time before their biometrics are enrolled without losing their entire fee. It’s not valid until then. They might want to withdraw because they have made the wrong application or decided to leave the UK. If they want to make a different type of application they can instead vary it.

It can be bad because:

the applicant is no longer protected by ‘section 3C leave’ if their current leave has expired by the date of rejection. Section 3C leave is the automatic extension of their previous leave whilst the Home Office make a decision on their application. It also continues, if refused, for the period in which they can lodge the appeal, and during any appeal. Without this, they’ll be an overstayer
the lack of section 3C leave can have knock-on effects such as the loss of benefits or of the permission to work
the Home Office may not make a decision on validity in enough time to make a fresh application before the existing leave expires
they do not have a right of administrative review or appeal.

The Home Office will still consider a late application submitted within 14 days of the applicant’s current leave ending. But the applicant needs to show a good reason for the delay. It won’t give them section 3C leave in the meantime.

When the Home Office accepts the application as valid it doesn’t mean that it’s guaranteed to succeed. They can still refuse on the ‘suitability’ or ‘eligibility’ grounds in the rules, such as a failure to meet a financial requirement. Getting this right is no less important for an application to succeed.

Validity and the EU Settlement Scheme (EUSS)

Most applications to the EUSS, other than from joining family members, are now made late — after the deadline of June 30 2021. Changes to the immigration rules in August 2023 ‘shifted’ consideration of late applications to the validity stage.

This solves one problem — that new arrivals who haven’t even been in the UK before then end of 2020 — quickly get a refusal before they put down roots.

On the other hand, making this a validity requirement took away at one sweep the right of appeal for a refusal on those grounds. With the removal of the right to an administrative review at the same time, applicants are now stuck with having to either accept the Home Office decision or take an expensive judicial review in the High Court.

What are the ‘validity’ requirements

The validity requirements vary according to the type of application. These requirements are set out in the Immigration Rules.

I should point out that validity requirements can apply to applications made outside the UK, but aren’t necessarily used to reject (rather than refuse) them, other than for refugee family reunion. This is temporary and will change as the casework system is extended to them.

Paragraphs 34, 34A and 34B of the Immigration Rules lay down general rules, but these may not fully apply where the route has it’s own validity section.

The routes with their own validity sections have been rewritten as part of the ‘simplification’ review the Home Office is currently applying to the Rules. There’s a section in each route on validity, in a standard format. Here’s an example from Appendix UK Ancestry:

“Validity requirements for UK Ancestry
UKA 1.1. A person applying for entry clearance or permission to stay on the UK Ancestry route must apply online on the gov.uk website on the specified form as follows:
(a) for entry clearance, form “UK Ancestry, Right of Abode or Returning Residents visa”; or
(b) for permission to stay, form “Application to extend stay in the UK: FLR(IR)”.
UKA 1.2. An application for entry clearance or permission to stay on the UK Ancestry route must meet all the following requirements:
(a) any fee and Immigration Health Charge must have been paid; and
(b) the applicant must have provided any required biometrics; and
(c ) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality.
UKA 1.3. The applicant must be a Commonwealth citizen.
UKA 1.4. If applying for entry clearance, the applicant must be aged 17 or over on the date of their intended arrival in the UK.
UKA 1.5. An applicant who is in the UK on the date of application must have previously been granted permission on the UK Ancestry route as a person with UK Ancestry.
UKA 1.6. An application which does not meet all the validity requirements for the UK Ancestry route is invalid and may be rejected and not considered.”

Validity requirements do, then, vary for different routes. Common validity requirements are to:

use a specified application form — with all the mandatory sections completed
pay the application fee and immigration health surcharge (IHS) — unless there has been a successful application to waive all or part of these
provide a valid passport or travel document that establishes their identity
enrol their ‘biometric data’ (fingerprints and photographs) within the time limit given
provide specified documents. This might be a certificates for a TB test, sponsorship or acceptance for studies
have (or last have) leave in a permitted category

The rules sometimes set validity requirements that the applicant can do nothing about — they either meet them or they don’t. Examples include:

age — on many routes applicants need to be 18 or over. The Home Office might use their discretion to accept the application if they are just a few days short of their 18th birthday! Other ages can be set — such as under 30 for Youth Mobility Scheme visas
current immigration status. This can restrict switching between routes or prevent illegal entrants or overstayers applying
nationality — particularly for UK ancestry, the Hong Kong (BNO), Afghan and Ukraine Schemes and the youth mobility scheme.

Advisers and clients therefore need to check that the application meets the validity requirements for the route under which the application is made. They should remember that if the requirements cannot be met then the adviser must be regulated at level 2 by the Office of the Immigration Services Commissioner (OISC).

Sometimes you can include a dependent in a single application form. Breaching a validity requirement for one of them will only cause that dependent’s application to be invalid. For example, if you pay only part of the total fees then the Home Office treats it as being for the main applicant. The dependents’ applications will be rejected as invalid.

If you submit an invalid application

The application fee and any immigration health surcharge is refunded If the Home Office rejects an application as invalid. Only a small administration fee of £25 per person is taken.

A notice of invalidity will be sent to the applicant. This is sent by post, courier or email — so it’s a good idea to remind applicants to check their post, email and spam boxes just in case.

The Home Office may contact applicants in the UK and give them one chance to correct the omission. They’ll give 10 days for this, but only if it’s possible to correct it.

Discretion to accept invalid applications

The Home Office also has the discretion to treat an application as valid even if it does not meet the validity requirements.

If you know the application will be invalid, it’s best to ask them to use their discretion to still accept it. Give reasons and provide proof. You must still pay the fee and health charge — or get a waiver — and enrol your biometrics.

Also check what Home Office guidance on each route says — there may be circumstances already set out.

If the applicant has missed the 10 day deadline for submitting the application after the grant of a fee waiver, the date for the leave application is the day on which they submit the leave application, not the date of the fee waiver application (paragraph 34G(4) of the Rules). This applies even where the Home Office has not rejected the application as invalid for a failure to submit within 10 days. This obviously has implications for the applicant, because section 3C leave will not kick in if the date of the actual application is after their leave has expired, and they may lose the right to rent, work or claim benefits.

The Home Office may also accept as valid incomplete application forms where the information in a mandatory section has been provided on another part of the form.

If it appears that the wrong form for the route/category has been used, the Home Office can write to give the opportunity for the applicant to amend it, withdraw it or apply on a different route. If the applicant doesn’t reply within 14 days, they’ll consider it under the route the form is for.

Outright exceptions to the validity rules

These are few and far between. The sole one you may encounter is where the application is made on family or private life grounds by

an asylum seeker
a detained person or
an appellant

They are then exempted from the normal validity rules for these applications.

Problems with validity

Application Forms

There is a new practice of stating in the Rules which application form must be used. This can actually be quite useful, as there has been confusion in the past over which form to use. The application isn’t valid unless you complete all the mandatory sections, but online forms generally don’t allow submission without this.

Under 18’s will need to show parental consent for the application to be valid.

If there’s still a paper form available, you must use the current version. You can use old versions up to 21 days after their replacement. If you use an old one — or don’t complete mandatory sections — then you’re given 10 days to remedy this.

Almost uniquely, in Appendix Private Life and Appendix FM, applicants for indefinite leave can be given limited leave without a further application, if they don’t satisfy all the rules for settlement. The immigration health surcharge (IHS) would need to be paid.

Fees

Online fees tend to go through automatically. In other cases there can be a delay between providing payment details and the Home Office taking that payment. The case of Basnet means that the Home Office has some responsibility to provide details of what went wrong and prove it was the applicant’s fault. If the applicant is otherwise going to be an overstayer, ask the Home Office immediately for copies of their attempt to take payment. They only keep this for a few months.

Advisers should also make sure their client has:

enough money in their bank account on the date of submission
pays the correct IHS amount for their type of application.

If the applicant doesn’t have a valid passport

The passport needs showing at the biometrics appointment, or sometimes scanned using the ‘UK Immigration: ID Check’ app. Passport details are also put on the application form.

Para 34(5)(b) says you can use a valid national identity card (NIC) if you don’t have a valid passport. You can use your most recent passport if you have neither.

However, where there is a validity section in the Rules for a particular route, para 34 doesn’t apply — and there’s a whole string of Appendices covering major immigration routes that are also excluded by para A34. In these cases they will only accept the documents specified for that particular route — usually a passport or ‘other document which satisfactorily establishes their identity and nationality’. This leaves it to caseworker discretion, assisted by guidance, to determine what is satisfactory.

A NIC probably won’t be acceptable unless the Rules for that route say so, for instance for EEA citizens applying to the EU Settlement Scheme (EUSS).

The Home Office stopped accepting national identity cards at the border even for EEA and Swiss citizens from 1 October 2021. The exceptions are NICs from:

Ireland and Gibraltar
people with an EUSS status
EEA frontier workers.

The Home Office believes ID cards are easier to fake than passports.

The guidance gives exceptions to the requirement to provide proof of identity including if it is:

already held by the Home Office
permanently lost or stolen (provide a crime reference number) and there’s a good reason why it’s not been replaced
reasons of personal safety or national security
held by the employer of a victim of trafficking
a Migrant Victims of Domestic Abuse concession application or domestic abuse settlement application
an asylum, protection or statelessness application.

Those who have already provided identity through the UK Immigration: ID Check app do not have provide it either, of course.

The guidance does specify what might be a good reasons for not having a passport:

no functioning government
no embassy in the UK, or it’s run out of passports!
reasons of national or personal security
delay in issuing a new passport
unreasonable refusal to issue a passport — for example they have to apply in person outside the UK

Additionally, they can waive the requirement if the applicant ‘provides a good reason beyond their control why they cannot provide proof of their identity’.

The commonest reason I’ve seen has been where the embassy or national authority has unreasonably refused to provide a document. The Home Office will accept this as a good reason and gives 2 examples where

they’ll only provide a passport if the applicant applies in person but there is no provision to apply in person in the UK or
they put unreasonable barriers in place for the applicant to apply

Obviously, you need to provide proof to support the reason. This might be emails to the embassy or copies of their website information on applying for a passport. Some Home Office country guidance gives background information on a country’s passport rules.

For Ukrainians who fled without documents there was a general acceptance that they have a good reason — war — for not having a valid passport. Indeed expired passports have been accepted. The UK does insist, though, that they enrol biometrics abroad, whilst those with a passport could come to the UK and do that later.

In any of these circumstances the Home Office can ask for alternative proof of nationality and identity. This might be a birth certificate or driving licence. In my experience The Home Office won’t accept their own ‘ARC’ (application registration card) held by a current or former asylum seeker.

EXAMPLE
Aamira came from South Sudan illegally and never held a passport. She claimed asylum due to her political activism but was refused. She was given leave on family life grounds after marrying a British Citizen. She applies to renew this but still has no passport. She needs to obtain a nationality certificate before getting a passport and shows that she cannot provide the birth certificate or witnesses for this. She provides emails from the Embassy, who say she must return to the country to resolve this. She has school certificates and a party card that the Home office has already accepted as proof of her nationality. UKVI accepts these reasons for not having a passport and renews her leave.

You don’t need a passport to apply for settlement as a refugee. Indeed, a refugee may invalidate their status by applying for one. Of course, they should submit their refugee travel document, if held.

It’s harder to show a good excuse for not having a passport if someone has another status following refusal of an asylum application. This includes discretionary leave or leave given on family or private life grounds. They may not have had a passport when their leave was first granted, and can be reluctant to apply for one. Unfortunately, they will either need to do so or convince the Home Office that they or their relatives are at risk if they apply. That’s hard if the Home Office has already rejected their fears of persecution.

Biometric enrolment appointments

These are appointments where the applicant has their photograph and fingerprints taken. They will normally have to attend an appointment at a visa application centre if they are outside the UK.

Inside the UK, they must book an appointment at a UK Visa and Citizenship Application Services (UKVCAS) centre within a fixed time after applying. This involves setting up a UKVCAS account online. If they have applied for a fee waiver or are making a human rights application — an ‘FLR(FP)’, ‘FLR(HRO)’ or ‘DL’ form — then they’ll instead get an email inviting them to attend a Service and Support centre.

UKVI can reject the application if you don’t book and attend a biometric enrolment appointment within the time limit. You can defer the appointment if the applicant is:

too unwell to attend
required to quarantine
required to continue to self-isolate.

Deferrals were well used during the coronavirus pandemic, and the Home Office showed flexibility over the time limit for booking appointments.

In some cases they may be allowed to use the ‘UK Immigration: ID Check’ app on a mobile phone or device, in which case biometrics will be considered to have been enrolled as soon as the application is submitted.

EEA citizens in the UK can instead use a smartphone ‘EU Exit: ID Document Check App’ if applying to the EU Settlement Scheme. They can also use the ‘UKVCAS IDV app’ for other types of applications if invited to do so by email. Outside the UK, EEA citizens use the ‘UK Immigration: ID Check app. They may need a chipped passport to use this.

In some cases the Home Office has ‘re-used’ biometrics given in a previous application. They’ll do this according to priorities in their guidance. It’s currently done only for student visas where biometrics were last enrolled after July 2015, and some family and domestic violence applications. They will tell you if they can re-use biometrics.

So if, for instance, you are making a partner settlement application, it’s worth holding back from booking the biometrics appointment until you get an email from the Home Office. They might invite you to use an app to take your own photo, a photo of your passport’s identity page and you can also then use it for uploading supporting documents as well.

Getting it right

As you can see, avoiding the return of an application is not straightforward. But advisers and applicants should get it right if they stick to the following checklist:

check the passport is available and valid
use the specified application form
pay the correct fees or give the waiver reference
book the biometrics appointment within the time limit
provide all the required documents.

If you can’t provide something:

give a reason why it’s missing
prove why
provide alternative evidence.
ask the Home Office to use discretion to accept the application
if you can provide it later, say when and why!

John Donkersley is the senior immigration expert in the Expert Advice Team at Citizens Advice.

The information in this article is correct as of the date of publication. Some parts were updated on 18 March 2022. Also amended on 16 February 2023 to clarify the date of application if the leave application is not submitted within 10 days of the grant of the fee waiver. Amended October 2023, to add section on EUSS and general updates, and minor updates on 28 May 2024.

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