Don’t Leave the UK if you have an Outstanding application
The recent COVID-19 pandemic has had an unprecedented effect on businesses throughout the last year and a half. Immigration, in particular, has been affected with a multitude of issues arising as a result of travel restrictions. In this case study, Abbiss Cadres’ expert immigration lawyer, Jonathan Martin, deals with a complex case involving a US Citizen who could not return to his home country and his wife due to travel restrictions imposed as a result of the pandemic.
A US Citizen was married to a British Citizen and living in the UK. Under the UK Immigration rules, partners can qualify for Indefinite Leave to Remain after 5 years. Having fulfilled this requirement, he submitted his application in October 2020.
Travel was a part of his work commitments, and usually, this would pose no issues. However, due to the recent pandemic and the associated travel restrictions, he found himself stuck in Portugal. As part of UK immigration applications, applicants are required to make a biometric appointment. Despite having applied in late 2020, the US Citizen had been unable to book an appointment due to COVID-19 and the fact that there were no appointments available. Once they became available, he booked one for early August 2021 and contacted Jonathan.
Paragraph 34K of the Immigration Rules states that if you leave the UK while having an outstanding application, the application is taken to be automatically withdrawn. If the US Citizen had attempted to enter the UK, it is very likely that he would have been picked up by an Immigration Officer for illegally entering the UK and this would reset the clock for his application – meaning he would need to spend another five years in the country before reapplying for Indefinite Leave to Remain.
Thankfully, he contacted Jonathan and was quickly advised to formally withdraw his application from Portugal. Jonathan informed him that as he was doing this before his biometric interview, he would be entitled to a refund. He would then have to apply for permission to come back to the UK as a partner since his last grant of permission to be in the UK had expired. However, once he was back in the UK with the new grant of leave to enter, he could then apply for Indefinite Leave to Remain. This was because the rules state that if you leave the UK while possessing valid leave to remain, which he had, and then re-enter with leave to enter (even if it’s not the same visa) then the continuity of leave to remain is unbroken and, as he has already achieved 5 years, he could apply again for Indefinite Leave to Remain.
With this advice, the US Citizen would be back on track for his application for Indefinite Leave to Remain without having to worry about needing to wait another 5 years before applying or accidentally entering the country illegally.
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