THREAD. The Home Office has just introduced a bunch of new *validity* requirements in the new Appendix categories. This is significant because an invalid application doesn’t trigger section 3C leave so an invalid application doesn’t extend your leave while it’s considered.

(1) So if you dutifully apply to extend your leave just before it expires, and it later transpires that the application was invalid because you didn’t meet a validity requirement, it’s like you never made an application. You’re now an overstayer.

(2) That was the case before but before, pretty much all of the validity requirements were things that could be rectified. UKVI sends you a letter giving you two weeks to, e.g. pay the correct fee if you paid the wrong fee, and if you do that, your application is validated.

(3) The new requirements, found in the new Appendix categories like Skilled Worker, are category specific and they import what used to be eligibility requirements into the validity section. So if you apply under UK Ancestry and you’re not a Commonwealth citizen, it’s invalid.

(4) Many of these requirements are things that cannot be rectified. So if you make an in-country UK Ancestry application and you don’t already have leave in this category, it’s an invalid application. There is no way of rectifying the failure to meet this requirement.

(5) Because you usually don’t find out that you’ve actually made an invalid application until after your leave was due to expire, by the time you get the invalidity letter from the Home Office, your leave might have actually expired and you’re now an overstayer.

(6) Like most things, this will hit applicants who are applying without legal assistance harder and I expect to see more people come to us because they lodged the wrong application, it’s been rejected as invalid, and now they’re an overstayer.

(7) But this is an issue that will affect lawyers as well. If a new client comes to us the day their leave is due to expire, and they want to make one of these applications, we can’t just submit the form and look at whether they meet the requirements after it’s been submitted.

(8) And some of the new validity requirements are tricky. If you apply in the Skilled Worker route and you currently have leave outside the Rules, that’s an invalid application. If a new client shows you a BRP endorsed with “Leave to remain”, you can’t tell whether it’s LOTR!

(9) Your application is also invalid if you apply in the Skilled Worker route but you currently have leave as a visitor. But there’s currently a COVID concession that allows some visitors to switch into these routes so how does this work then?

(10) This makes it more important than ever for employers to do right to work checks on time. An employee could send you evidence that they made an in-time application but it can later turn out to be invalid so they never actually made an application before leave expired.

(11) The “Validation, variation and withdrawal of applications” guidance has been updated in light of the new category-specific validity requirements and it’s worth reading https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/939378/applications-for-leave-to-remain-v3.0ext.pdf

(12) Because all of the non-para 34 categories have “correct form” as a validity requirement (and unlike para 34, this actually means something here), it’s useful to note that if you apply on the wrong form, you will be given the chance to submit the correct form.

(13) But when it comes to requirements that cannot be met, even if given the opportunity to rectify the error (e.g. a requirement to be a Commonwealth citizen), your application will just be returned as invalid.

(14) If I had a case where it became clear that they wouldn’t meet an unfixable requirement after they submitted but before the UKVCAS app (e.g. “must be Commonwealth citizen”) I’d be tempted to put in a covering letter that said e.g. “This is an app for leave outside the Rules”.

(15) So that UKVI treats it as potentially invalid because the wrong form was used (invalid but given opportunity to correct) rather than because they’re not a Commonwealth citizen (invalid). No idea if this would work but if the alternative is invalidity...

(16) Side note, this is the first time I’ve seen words like “futile” and “obviously” in a Home Office guidance document. I wonder how often this has happened.

(17) Oh and there’s this nonsense as well. https://twitter.com/alexinlaw/status/1334791010937958402

(18) Just to be clear, these category-specific provisions only apply to the new Appendix categories. If you’re applying in a different route (like spouse, which is Appendix FM but not one of the *new* Appendices) the old rules still apply to you.

(19) So what I’d do if you need to make one of these applications before your leave expires and there is any doubt about one of the validity requirements, lodge a para 34 application (so not one of the new Appendix categories) with a view to varying it.

(20) An invalid application doesn’t vary an outstanding application so if you lodge a valid para 34 application and vary it to a new Appendix one, and the Appendix app is invalid, you would’ve still made a valid in-time application.