The Home Office has published new guidance on when a decision maker should vary an application for settlement/indefinite leave to remain and grant permission to stay instead. Settlement: guidance on when to vary a settlement application and grant permission to stay, Version 1.0 was published for Home Office staff on 24 June 2022.
Which Applications Does the Guidance Apply to?
The new guidance on varying a settlement or ILR application and granting permission to stay applies to the following categories under the Immigration Rules:
- Appendix Family Life
- Appendix Private Life
- Appendix FM
- Appendix Hong Kong British National (Overseas)
The guidance applies where an applicant does not meet the requirements in order to settle in the UK but does meet the suitability and eligibility to be granted further permission on their current route.
This may also apply to applications under Appendix Settlement Family Life and Private Life if the suitability requirements are not met. In this article, we consider the recent changes and explain the more stringent suitability requirements.
The purpose of the guidance is to ensure that an applicant for settlement who does not meet those requirements but does meet the requirements for permission to stay is not refused status.
The Process For Consideration
The new guidance on varying a settlement or ILR application and granting permission to stay sets out the stages in the process.
Firstly the decision-maker must first look at the settlement application.
If the applicant does not meet the requirements, before refusing, the decision-maker must consider whether the applicant meets all the suitability and eligibility requirements to be granted further permission to stay on the route they are currently on.
If the applicant is likely to meet the suitability and eligibility requirements for permission to stay, the caseworker should record on the system that it is intended their application will be varied from an application for settlement to one for permission to stay. Any variation will need to evaluate whether the applicant is required to pay the Immigration Health Surcharge. If the applicant is exempt, this must be noted. This may apply if the application is made by a minor child who has been taken into care by a local authority.
What Happens When the Settlement Application is Refused?
The guidance confirms that an application must not be refused outright without further consideration of whether other requirements for permission to stay are met. Reasons why the requirements for settlement are not met must be explained:
"they do not meet the requirements for settlement - you must not refuse the settlement application at this point as if you did, this would bring to an end any section 3C leave and may break continuous residence and prevent the applicant from qualifying for settlement in future " why they do not meet the requirements for settlement - you must explain which requirements they do not meet and why, as you would in a settlement refusal letter".
Payment of Immigration Health Surcharge (IHS) or Application for Fee Waiver
Those applying on the Innovator and Hong Kong BN(O) routes will be required to pay the IHS within 14 days.
For those applying on the family (partner, parent, child) or private life routes, they must either pay the Immigration Health Surcharge (IHS) within 14 days or apply for a fee waiver within that period. You can read more about the Immigration Health Surcharge in our article: here and about fee waivers in our articles: here and here.
It is important to consider your position and make the right application as there will be no refund of the settlement fee. You can read more about the refund policy in our article: here. There is no requirement to pay additional fees for the application for permission to stay.
At the end of the 14-day period the caseworker will check whether the Immigration Health Surcharge has been paid or a fee waiver application has been made. If the Immigration Health Surcharge has been paid, the applicant will be granted permission to stay. If a fee waiver application has been made and it is successful, permission will be granted. If unsuccessful, the caseworker will write again informing the applicant they have 14 days to pay the IHS.
If this is not paid or, where relevant, a fee waiver has not been requested, the application will be rejected and the fee will not be refunded as the settlement application will have been fully considered.
The guidance applies even where a person has time remaining on their current permission. The new grant of permission will vary the existing permission. If the applicant does not pay the IHS or apply for a fee waiver, their application will still be rejected as invalid. However, if they have valid leave, it will remain extant unless it is cancelled. The guidance confirms that any remaining leave should not be cancelled without a basis to do so.
How Can I Challenge A Decision?
There is no right of appeal or administrative review or right of reconsideration where a settlement application is varied in order that permission to stay is granted. However, once the caseworker has notified of the change, the applicant may make contact and notify the caseworker if there has been an error. It is possible for this to lead to a grant of settlement if the caseworker realises a decision was incorrect.
The guidance gives the following example:
Where an applicant did not meet the qualifying period requirement because they were absent for more than 180 days in a 12 month period, and you said their absences were not for one of the reasons for permitted absences in Appendix Continuous Residence - the applicant may contact you with evidence that the absences over 180 days were for a permitted reason. If you are now satisfied all the suitability and eligibility requirements for settlement are met you must grant settlement.
If the information provided does not change the decision to vary or the information is not relevant, a further letter will be sent explaining why settlement is not met and a further 14 days to pay the Immigration Health Surcharge (IHS) or to apply for a fee waiver will be given.
If the decision is made to vary the application and limited leave is granted, as opposed to settlement, it may be preferable to accept this by making further payment . Although there is no right of appeal, it may be possible to seek a judicial review of the decision. If an application is rejected this may bring leave to an end. This may result in the applicant being subject to the hostile environment which may have adverse consequences including the loss of a right to work. You may therefore wish to seek legal advice before taking any steps.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.