It has been a long-held mantra of UK immigration lawyers that visa applicants should not travel once they have submitted their applications.
This has been the case for both in-country applications (where an extension or switching application has been filed, or when applying to Settle in the UK) and out-of-country applications. We also caution against travelling after submitting a first visa application from outside of the UK, particularly if travelling to the UK whilst that visa application is being processed.
With the increased digitalisation of all things UK immigration, this article explores and highlights the potential pitfalls and repercussions of travelling after submitting a visa application.
Is it really location, location, location?
Prior to the digitalisation of many visa routes to the UK, applicants were required to submit their original passports when making an application, whether this was from outside the UK or from within. The advent of online submissions and the uploading of supporting documents has meant that often, visa applicants may keep hold of their passports while their applications are pending with the UK Immigration authorities (The Home Office). This is the case for both in-country and out-of-country applications.
However, not all situations are equal. Some types of in-country applications (when applying to naturalise as a British Citizen for example) are not impacted, whilst others are (extensions, switches, and Settlement), and out-of-country applicants may or may not be impacted.
The general position, for many years, had been that after submitting an in-country application, it was possible, although not necessarily always practical, to travel outside of what is called the Common Travel Area – the ‘CTA’ (the CTA is a long-standing arrangement between the UK, the Islands of Jersey and Guernsey, the Isle of Man, and Ireland, which creates an open borders area).
Prior to October 2021, there was an element of unpredictability as to when immigration authorities would impose the restriction on travelling outside of the CTA, and how this restriction was imposed – whether it was at the moment of online submission of the application form, or from the moment the biometric visa appointment was attended. A change to the Immigration Rules on 6 October 2021 clarified this, and Paragraph 34K in the UK Immigration Rules now states that:
|‘Where a decision on an application for permission to stay (i.e. an in-country visa application) has not been made and the applicant travels outside the Common Travel Area, their application will be treated as withdrawn on the date the applicant left the Common Travel Area.’|
We have always cautioned our clients as to both the theoretical and practical implications of travelling after submitting an in-country application. With the advent of eGates for those returning with valid permission, or those who travel after a decision has been made but before being in receipt of the new visa documentation, applicants did, on occasion, consider that the risks of the application being refused would be low. However, now that the Home Office is rolling out its new immigration systems and is relying ever increasingly on the use of digitalisation, not only of the borders but of ‘E’ status, the dangers are all too clear and real.
We recently assisted an individual who made an application for Settlement in the UK and who still had valid permission to be in the UK, but who travelled before a decision had been reached, returning to the UK using the eGates. Notification was sent via email to the individual advising that Home Office checks had indicated they had left the UK whilst their application was not yet decided. The Home Office treated the Settlement application as withdrawn and curtailed the current permission for this individual to be in the UK. The outcome for the individual could not be more problematic: they have no application for Settlement and no way to remedy their position without leaving the UK.
With the increased advent of digital tracking and recording, we caution those whose applications are pending to seek legal advice before travelling to understand the potential impact that may have on their current immigration status and any outstanding application.
The position for out-of-country applications is also not without issue.
Nationals of countries that do not currently require a visa to enter the UK as a visitor are permitted to travel to the UK as a visitor whilst their immigration applications are pending, so long as they meet the UK Immigration Rules relating to visitors. There are two potential areas of concern for this group of travellers – the first is practical, insofar as such persons have to leave the UK in order to activate the new visa, and they also possibly have to return to the country of submission in order to have their passport endorsed.
The other, more direct and possibly more serious area of concern, is proving to an immigration officer (if entry to the UK is not via an eGate) that they satisfy the UK Immigration Rules as a visitor and in particular have an intention to depart the UK at the end of the stated visit.
The impacts of the digitalisation of the UK immigration systems are now being felt. The further roll-out of a new Points Based System (due later this year and into 2024) will be far-reaching, and there are many kinks still to be ironed out.
We, along with the Immigration Law Practitioners Association, are endeavouring to consult with the Home Office on the proposed changes to the immigration systems and the rollout by the end of 2024.
Should you, a colleague, or a family member require any assistance in relation to the information in this article, please contact Tanya Goldfarb, Head of our Business Immigration team
Please note, the information contained in this article is not legal advice and should not be relied on as such.