Most in-country UK visa applicants are now able to retain their passports whilst their application is being considered. Due to this, many individuals are often unsure as to whether or not they can travel outside the UK whilst waiting for a decision. Here, we look at the impact travelling outside the UK can have on the status of an application whilst waiting for a decision.
Guidance on passport retention
When applying for permission to stay or settlement via the UKVCAS system, applicants can retain their passport whilst the application is being considered. This is provided for at paragraph 34J of the Immigration Rules which states:
‘The proof of identity provided under paragraph 34(5), or any other application for permission to stay, will be returned to the applicant whilst their application is being considered, unless the Secretary of State considers it necessary to retain it.’
Although applicants are able to keep their passports, those who travel outside the Common Travel Area (CTA), which includes the UK, Republic of Ireland, Channel Islands and Isle of Man, before a decision is made on their application, can have their application treated as withdrawn by the Home Office.
This is confirmed at paragraph 34K of the Immigration Rules which states:
‘Where a decision on an application for permission to stay has not been made and the applicant travels outside the common travel area their application will be treated as withdrawn on the date the applicant left the common travel area.’
Are there any exceptions?
There are some exceptions.
Those who have applied to naturalise as a British citizen can travel outside the CTA whilst a decision is pending on their application. This is providing they have the intention of remaining settled in the UK. This is because citizenship applications are not made under the Immigration Rules.
In addition, an exception exists for applicants applying under the EUSS route for pre-settled or settled status. The relevant guidance provides that whilst a decision is pending, applicants under this route can travel outside the CTA without having their application treated as being withdrawn.
What happens if I travel outside the UK and my application is withdrawn?
If your application is not of a type described above and you travel outside the CTA, you are risking your application being withdrawn. This would mean that you would no longer have an immigration application pending with the Home Office. If you made the application before the expiry of your previous permission, which has since expired, and are therefore relying on section 3C leave, that leave will have expired on the date you left the CTA.
Section 3C of the Immigration Act 1971 is the legislation that allows a person to remain lawfully in the UK once their initial permission to stay has expired, providing they filed a fresh immigration application before it did so.
If you are building up time to qualify for Indefinite Leave to Remain (ILR), having an application withdrawn may break your period of continuous residence and elongate the time you must spend in the UK before becoming eligible for ILR. For example, if you have completed three years of the five-year qualifying period for partners of British citizens, leaving the UK whilst your application is being processed risks effectively erasing the qualifying period you have already built up. You may then have to start the five-year period again.
If your application is treated as withdrawn, you may be entitled to a refund for the full Immigration Health Surcharge fee. Unfortunately, you may not be able to claim a refund for the application fee.
Am I able to gain entry to the UK to receive a decision?
If you have an immigration application pending with the Home Office and you choose travel outside the CTA whilst the application is being considered, the application itself will not give you the right to re-enter the UK in order to receive a decision on it.
If your application is treated as withdrawn, you will not be able to enter the UK unless you obtain a different type of leave. This can present a number of risks.
EXAMPLE
David, a Canadian national, originally obtained permission to stay in the UK on the basis of his marriage to Ann, a British citizen. David filed an extension application on 1 September 2022 and his original permission expired on 4 September. David was benefitting from section 3C leave. David needed to travel to the USA for a business meeting and did so on 1 October. When he tried to re-enter the UK, he spoke to a Border Force Officer who explained that leaving the UK had withdrawn his application. The Border Force Officer refused to allow David to enter the UK as a visitor because he was clearly not a visitor. David therefore had to return to Canada and file a new partner application.
If you were applying to extend your permission to stay and it has not expired, you should still be able to enter the UK with it, but you would then need to file a fresh application.
Planning applications around travel
It is important that travel plans are put on hold once an immigration application has been filed from inside the UK, or, if travel is needed, that applicants are aware of the potential risks before departure.
If travel is essential, it may be possible to protect the person’s immigration status by filing an application from outside the UK. We often file applications so that Skilled Workers, for example, can attend business meetings and still have continuity of permission for their ILR application.
How our immigration solicitors can help
If you require legal advice regarding this or any other aspect of immigration law, our immigration specialists are always happy to have an initial discussion with you, please contact us or complete our enquiry form below.
