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Leave to remain application date: how to calculate it and why it is important

Leave to remain application date: how to calculate it and why it is important

You’ve left extending your visa until the last minute and are now in danger of missing the deadline. Does this matter and is there anything you can do about it?

The answer to the first question is a resounding yes. Fortunately, in most cases, the answer to the second question can also be yes. For all of their issues, the introduction of online applications forms allows migrants in danger of running out of time to buy a little breathing space. The extension application can be made online, fixing that as the legal date of application, and the appointment needed to finalise things booked for a later date.

This post explains the concept of an application date in immigration law, how to calculate it, and why making an application online can help beat the deadline.

Why is the date of an application for leave to remain important?

Knowing the legal date that an immigration application has been made on is important for a number of reasons.

The most obvious one affects those who are applying to renew their leave. People in this situation must submit their application before the expiry of their current leave to avoid becoming overstayers, and therefore losing the right to work, the right to rent, and, these days, potentially their bank account or driving licence. If, on the other hand, they submit a valid application before the expiry of their leave, the terms and conditions of that leave will continue until a decision is made on the application (section 3C of the Immigration Act 1971).

The date of application is also important to those who want to rely on paragraph 39E of the Immigration Rules. This allows for a period of overstaying to be overlooked when:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

For some types of applications, the date of application is also relevant in assessing whether the documents submitted in support of the application are up to date. For example, under Appendices FM and FM-SE of the Immigration Rules, which apply to partners of British citizens or those settled in the UK, bank statements and other financial documents must end no earlier than 28 days before the date of the application.

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Another reason relates to the specified forms that must be used for postal applications to be valid. Although very few applications are now submitted by post, those forms are regularly updated. Generally speaking, an application will only be valid if the form submitted is the one published on the gov.uk website at the date of the application. (There is an exception, found at paragraph 34(1)(c) of the Immigration Rules, which allows applicants to rely on a previous version of the form as long as “it is no more than 21 days out of date”.)

This is one reason why the introduction of online application forms has been useful — there is no danger of using an out of date application form as it is automatically updated online.

How to calculate the application date for a leave to remain application

The answer is found at paragraph 34G of the Immigration Rules. The date of an application for leave to remain submitted from inside the UK depends on how the application is made:

  1. where the application form is sent by post by Royal Mail, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
  2. where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
  3. where the application is made via the online application process, the date on which the online application is submitted; or
  4. where an applicant has made a fee waiver request, the date of application for further leave to remain will be the date the fee waiver application was submitted, as long as the application for further leave was submitted within ten days of receiving the decision on the fee waiver application. This is to avoid applicants requesting a fee waiver from becoming overstayers while the fee waiver application is decided.

So for online applications, the situation is pretty straightforward: the legal date of application is the date the application was submitted online.

For applicants trying to identify a historical application date, it may still be worth knowing what the position was when Premium Service Centres — previously known as Public Enquiry Offices — existed. Where the application was completed on a paper form, the date of application was the date of the appointment at the Centre.

Case study: postal applications

David had leave to remain as a parent of British children. He completed the paper application form FLR(P) and sent it by Special Delivery on 22 May 2018. The date of application was 22 May 2018, as it was the date of posting as shown on the tracking information provided by Royal Mail.

If David had completed the paper application form FLR(P) and attended an appointment at the premium service centre on 22 May 2018, the date of application would have been 22 May 2018, when he attended his appointment with the paper application form.

If David completed the paper application form FLR(P) and sent it by courier on 22 May 2018, and the application was delivered on 23 May 2018, the date of application would have been 23 May 2018, when it was received by the Home Office.

If David submitted his application form online on 21 May 2018, that would be the date of the application, whether David then decided to book an appointment to submit his application at the premium service centre, sent the form by post or, nowadays, went on to enrol his biometric information at a Visa Application Centre or Service and Support Centre.

Finally, if David made a fee waiver request on 22 May 2018, and the Home Office agreed to waive the fee on 15 June 2018, he would then have ten days to submit the form. Let’s say he did that on 20 June 2018. The date of application will still be considered 22 May 2018, when he submitted the fee waiver request. If the date of application was considered to be 20 June 2018, David would become an overstayer despite taking action before the expiry of his leave, which would of course be grossly unfair.

The advantages of online applications

The overwhelming majority of applications for leave to remain in the UK can now only be made online. In fact, to the best of my knowledge, the only applications that remain paper applications are:

  • Form FLR(GT), for survivors of the Grenfell tower fire or others directly affected by the fire
  • Form FLR (P), for children of relatives who have leave as refugees or humanitarian protection
  • Form DDV, for those in the UK as partners of British or settled citizens, who need to access public funds before they can apply for indefinite leave to remain as victims of domestic abuse

The introduction of online applications has brought with it a number of advantages (besides avoiding illegibility for bad handwriting!). In particular, it gives the applicant more control over the date of the application.

Perhaps the point is best explained by way of example.

Case study: online applications

It is 20 May 2019. David’s leave is due to expire on 23 May 2019. David has a trip planned on 10 June. In addition, David must submit bank statements to show that he meets the financial requirement, but they are only due to reach him on 24 May.

Before online applications were introduced, David would have been in a difficult position. He would have needed to either post his application or attend a Premium Service Centre before 23 May. If posting the application, he would have needed to send his passport and it is unlikely his application would have been decided and his passport returned before 10 June. If attending a Premium Service Centre, David would have needed to submit his bank statements at the appointment and the application would have been refused without them.

Nowadays, David can apply online before the expiry of his leave. Let’s say he did that on 22 May 2019. That is the date of application and prevents him from becoming an overstayer.

After his application has been submitted, David must book an appointment at a UK Visa Application Centre, where he will enrol his biometric information and his passport and documents will be verified, before being handed back to him. David can book his appointment for, for example, 25 May 2019, when he will have received his bank statements. The date of application being the date he submitted his application online, and not the date of his appointment, David continues to have valid leave to remain in the UK.

If David does want to travel on 10 June, he would be well advised to pay for the Super Priority Service (an eye-watering £800!), which should mean that a decision is made by the end of the working day after his appointment.

Although the Visa Application Centre won’t retain David’s passport, if he travelled with it before a decision were made on his application, his application would be considered withdrawn, and he would not be able to re-enter the UK as he would no longer have valid leave.

In short, submitting applications online allows applicants like David to:

  • Ensure that they have submitted an application before the expiry of their leave, as the date of the application is the day they submitted the application online
  • Gain time to finalise required paperwork such as bank statements
  • Travel on a date that falls just after the expiry of their leave

Of course, the best advice remains to prepare and submit an application well in advance! But for those who let time get away from them for whatever reason, the introduction of online applications has allowed applicants to buy some breathing space.

This article was originally published in June 2018 and has been updated to take into account of the increase in online application routes since then. It is correct as of the revised publication date.

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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