Many people plan their seasonal holidays and look forward to spending some well-earned downtime with family and friends.
As travel restrictions ease worldwide, it’s now much easier to book that last-minute trip and enjoy a quick getaway almost anywhere in the world.
Visa processes, unfortunately, are not quite as flexible.
Recent changes to the immigration rules confirm strict restrictions on travel for people who have applied from inside the UK for leave to remain or settlement. In addition, there are harsh consequences for leaving the UK prior to a decision on a submitted visa application.
This blog covers the significant rule-change and gives helpful pointers on timing your visa application.
Worker Travel while the application is pending – what’s changed?
Prior to 6 October 2021, it was written into the immigration rules that if a person made an application and requested their passport back, this would trigger the withdrawal of the visa application.
The impact of this rule was very clear-cut, back when applicants needed to submit/post in their original passports for their visa application. The caseworker would keep passports until the application was decided, so you knew that your application would be consequently withdrawn in making a “passport return request” for travel.
Since UKVI partnered with Sopra Steria in 2018 to deliver biometric appointments, original passports have been routinely processed and returned to applicants when enrolling in biometrics. This has left some ambiguity about the applicant’s ability to travel while waiting for a decision.
This all changed from 6 October 2021, when the immigration rules were amended to state:
“34K. 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to stay has not been made and the applicant travels outside the common travel area their application will be treated as withdrawn on the date the applicant left the common travel area.”
In practice, this means that someone cannot travel outside the Common Travel Area (CTA) while their in-country visa application is pending. Otherwise, their application will be considered automatically withdrawn.
The Common Travel Area (CTA) comprises of:
- UK
- Republic of Ireland
- Channel Islands
- Isle of Man
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Impact of an automatic withdrawal
Suppose a person with an outstanding visa application travels outside the CTA. In that case, the application is automatically withdrawn, and they have no right to re-enter the UK to receive a decision on their application.
If biometrics have already been submitted, the Home Office will not refund the visa application fee, but the Immigration Health Surcharge will be refunded.
If the person’s visa has not expired when they return, they should be admitted back to the UK on the basis that they have extant leave (time left on their visa).
If their visa has expired, they are likely to be refused re-entry.
Workers travelling in between jobs
A lot of people use the time in-between jobs to squeeze in a holiday before taking up a new job role.
If you are planning an application to change the sponsor, a short holiday will not normally affect the continuity of residence for Indefinite Leave to Remain (ILR) as a Skilled Worker.
However, a Skilled Worker or Intra Company Transfer migrant holding a visa sponsored by an employer they are no longer working for may be asked detailed questions about their plans for re-entry at the border.
Under some circumstances, the Home Office can cancel or curtail (cut short) a person’s visa on arrival to the UK. This could happen for a number of reasons, including if they no longer appear to meet the requirements of the visa category.
It is imperative that, if questioned, you explain that you have a firm job offer (you can carry a copy of your job offer letter or assigned CoS) and explain that you will make leave to remain application on arrival.
It would be safer to avoid travel if your current sponsor no longer employs you. However, if you do travel, it could be very important to show that you have your next visa application lined up, when re-entering. Even if your current employer no longer sponsors you, if you have firm plans to process an application on your return to the UK, this will normally help with your re-admittance to the UK as a Worker, but this is up to the discretion of the border officer.
Worker visa renewals – how early can we apply?
When planning a visa application around travel, there are normally two options: (a) postpone the visa application until the person has returned to the UK, or (b) apply for the visa before the departure date, with enough leeway for processing times, including delivery of the new biometric residence permit.
If your existing sponsored Worker’s visa is about to expire, they can apply for a renewal up to 3 months before the expiry date of their current visa.
As a sponsor, you will need to assign a new Certificate of Sponsorship (CoS) to your employee, which will be valid for 3 months for use in a visa application. Therefore, you must make sure that you are providing a valid CoS for their visa application, i.e. a CoS that has not expired. (Submitting a visa application with an expired CoS is a ground for invalidation of the visa application).
As a sponsor, you’ll need to ensure that you have a “quota” of undefined CoS before assigning a CoS to your Worker.
If you do not have a quota of CoS, you can make a request through the sponsor portal – the sponsor management system (SMS).
See more about CoS and visa processing times below.
Processing times
It’s worth familiarizing yourself with the processing times for visa applications, to ensure you are applying with enough time for your application to be submitted, considered and decided by the Home Office before your departure date.
Here are the relevant time frames to be aware of:
- Certificates of Sponsorship (CoS)
The sponsor needs to ensure that they have a “quota” of undefined CoS ready to assign to the employee. If they do not have a quota of CoS, they can make a request through the sponsor management system (SMS).
Although the normal service standard for obtaining a CoS is 18 weeks, there is a special Home Office priority service where you can get a decision within 5 working days, for an additional cost of £200.
- Visa applications and appointments
The standard processing time for Skilled Worker and Intra Company Transfer leave to remain applications is 8 weeks from the date of online application.
Home Office Priority services are available to help speed this up.
Priority Service
5 working day service standard (from the date of the biometric appointment) for an additional cost of £500
Super Priority Service
24 working hour service standard (from the date of the biometric appointment) for an additional cost of £800
In order to complete the visa application, the Worker will need to attend a biometric appointment at one of the UK service centre locations operated by the Home Office’s commercial partner, Sopra Steria.
Biometric appointments can be hard to come by, but it is often possible to book an appointment with shorter notice by paying additional fees for the desired slot – the cost set by Sopra Steria often ranges from £70-£199 per person.
Conclusion
Everyone enjoys a getaway from time to time, and Workers are often more likely to book overseas travel over the festive season to visit friends and loved ones back home. This year is likely to be all the more special, many having been separated from their loved ones over the pandemic.
As an employer and employee, you’ll both need to ensure that the timing of the visa application does not conflict with festive travel plans, as this could lead to a lot of extra stress and hassle if the UK visa application is not decided before the anticipated departure date.
The Worker also needs to be aware that, although they may have their passport in hand whilst they are waiting for a decision, this is not a green light to go abroad – if they travel whilst their application is pending, the application will be considered to be automatically withdrawn, which can lead to a waste of time and expense and will require a new visa application to be submitted from inside, or possibly even outside, the UK.
So, we’re clear – preparation is key.
At A Y & J Solicitors, we can help you look ahead with clarity and ensure the process is as smooth and stress-free as possible for everyone’s peace of mind. We’ll be here to support you to achieve your desired timelines and outcomes, so you spend less time worrying and spend more time enjoying what matters.
