Chapter 8 - How to apply for an entry clearance – the process

8.1	To which Post/Commercial Partner should an applicant apply - [Updated]
8.2	Unresolved applications (including lapsing) - [Updated 16 June 2008]
8.3	Undertakings by the applicant, sponsor or others - [Updated]
8.4	Significance of information from sponsor
8.5	Returnability
8.6	Factors to consider before a decision is made
8.7	Cancellation of entry clearance
8.8	Correction of incorrect endorsements

Annexes

8.1	Undertaking given in pursuance of the Immigration Rules
8.2	Error correction letter

Chapter 8 – How to apply for an entry clearance – the process

8.1 - To which Post should an applicant apply
Paragraph 28 of the Immigration Rules states that:
'An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An applicant for an entry clearance who is seeking entry as a visitor must apply to a post designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Any other application must be made to the post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he/she is living'.

8.2 - Unresolved applications [Updated 16 June 2008]

8.2.1 General
There is a general obligation on the ECO to resolve all applications made. No fee refunds are made for unresolved applications.

8.2.2 Applications: failure to attend interview
Where an applicant fails to turn up for an interview/re-interview

The ECO should write to the applicant within five working days of the missed interview date using the pro forma wording below:

On [insert date of no-show for interview], you [insert name and address of applicant] failed to attend an interview at [insert location for interview] in support of your [insert type of application] application. You must now, before   [give here date 3 months in advance] contact [insert contact details] to make a new appointment for an interview. If you do not do so your application will be refused. If you no longer wish to continue with your application please contact us at the above address.

 

 

 

 

 

Depending on the category of application made, the applicant will have either a limited or full right of appeal.

The ECO must send a Refusal Notice GV51(FRA) / GV51(LRA) and Appeal Form AIT-2 to the applicant, using the refusal wording:

"…but in view of the fact that you have not attended for interview, despite requests on [insert  the dates of all letters/correspondence etc] to do so, you have failed to furnish such information as is required for an Entry Clearance Officer to consider whether or not you meet the requirements of the Immigration Rules for entry clearance to the UK as a (enter category of EC applied for). You have provided no [satisfactory] explanation for not attending. I therefore refuse your application.”

NB:  The ECO must not use this as a standalone refusal wording.  The ECO must also refuse the applicant under other relevant paragraph(s) of the immigration rules – i.e. if the application appears to be a spouse application refuse under rule 281 in addition to 320(8A).

8.2.3 Applications - failure to supply documentation
Where an applicant fails to supply requested further documentation by a deadline agreed with the ECO.

When requesting further documentation the ECO should agree a deadline for presentation of this information. ECOs should make use of local knowledge when deciding a deadline, as this may need to vary according to the type of further documentation requested. If the applicant fails to provide the documentation within the agreed time, the ECO should write within five working days of the missed deadline using the pro forma below:

On [insert date further documentation requested] you, [insert name and address], were asked to provide further documentation [list documentation] in support of your [insert type of application] application by [insert deadline date for supplying the further documentation]. You have failed to do this. Unless you provide this requested further information within three months of the original deadline date, [insert new deadline date], your [insert type of application] application will be refused. If you no longer wish to continue with your application please contact us at the above address.

 

 

 

 

 

Depending on the category of application, the applicant will have either a limited or full right of appeal.

The ECO must send a Refusal Notice GV51(FRA) / GV51(LRA) and Appeal Form AIT-2 to the applicant, using the refusal wording:

"…but in view of the fact that, despite requests on [insert  the dates of all letters/correspondence etc], you have not supplied further documentation as requested,  you have failed to furnish such information as is required to consider  whether you require leave to enter and, if so, whether and on what terms leave should be given. You have provided no [satisfactory] explanation for not supplying the documentation requested.   I therefore refuse your application.”

NB: The ECO must not use this as a standalone refusal wording.  The ECO must also refuse the applicant under other relevant paragraph(s) of the immigration rules – i.e. if the application appears to be a spouse application refuse under rule 281 in addition to 320(8A).

8.2.4 Applications – failure to produce a passport

• Where the applicant fails to produce their passport within three months of a decision to issue, the ECO should write within five working days of the three months elapsing using the pro forma below:

On [insert date application made], you [insert name and address of applicant] applied for a [insert type of application].  However you have failed to produce your passport.  Without your passport I cannot issue an entry clearance. Unless you produce your passport by [insert date three months from the date of this letter], your application will be refused. You will then have to make a fresh application should you still wish to travel.

 

 

 

8.2.5  Appeals
For appeals against a decision made on the basis that the applicant has not attended an interview when requested and / or not supplied documentation when asked:

the ECO must include in the Respondent's Bundle copies of all correspondence referred to in the refusal notice i.e. the letters inviting them to make an appointment for interview and / or supply documents.

8.3 - Undertakings by the applicant, sponsor or others. [Updated]

Undertaking by the applicant
Under the Rules, an ECO must be satisfied that a person applying is genuinely seeking entry for the period and purpose stated. An applicant gives an undertaking to this effect by completing the relevant part of the application form. This undertaking may be reinforced orally during an interview and noted by the ECO at that time.

Undertakings from sponsors, MPs etc
Applications for entry clearance are sometimes supported by undertakings from a sponsor, Member of Parliament or other third parties. In this respect, only the undertaking of a sponsor on maintenance and accommodation is mentioned in the Rules (see following sub-section).

It follows that any other undertaking by a sponsor or any third party undertaking is unenforceable and no such undertakings should be sought by ECOs nor offers to provide one, be accepted.

If an undertaking from a third party appears as an accompanying document to an application, you may consider it as a factor, but without disproportionate weight.

Sponsor undertakings on maintenance and accommodation
As with undertakings from an applicant (see above), you should only require an undertaking from a sponsor in exceptional circumstances or for certain categories. This includes parents, grandparents and other dependant relatives under Rule 317 of the Immigration Rules. The separate chapter on settlement for such relatives gives guidance. An undertaking would not normally be necessary where the applicant is only going to the UK for a few weeks to stay with close relatives who have demonstrated adequate income and/or funds.

The form at Annex 8.1 must be used for undertakings on maintenance and accommodation from sponsors. You should explain the significance of signing this document to the sponsor and/or the applicant. You should make clear that this undertaking will be made available to the Department of Work and Pensions in the UK who will take the appropriate steps to recover the cost of any public funds paid to or in respect of the sponsored person.

The ECO should complete the certification on the form, keep a copy on file and send the original sponsorship undertaking direct to:

Department for Work and Pensions
Benefits Delivery (Special Operations)
Room 3S 25
Quarry House
LEEDS LS2 7VA

Failure by a sponsor to provide an undertaking on maintenance and accommodation when requested is grounds for refusal. (Rules Paragraph 320(14)).

Additionally, variation of leave to remain in the UK can be refused by the Home Office if a sponsor subsequently declines to give such an undertaking, or fails to honour one (Rules Paragraph 322(6)).

8.4 - Significance of information from a sponsor.

Although the intentions of the applicant are paramount, the Courts have consistently held that a sponsor's information is relevant (although only a sponsor's undertaking on maintenance and accommodation is mentioned specifically in the Rules - see Section above).

This means that you should give consideration to whatever a sponsor produces in support of an application and note anything that has a bearing on the case. Recording evidence from the sponsor will assist in rebutting any later accusation that the sponsor was excluded from the process.

8.5 - Returnability
The ability of a traveller to return to his or her country of residence (after visiting the UK) is known as returnability.

Some travel documents either give no guarantee that the holder will be re-admitted to the issuing country, or guarantee re-entry for a limited period only. Certain countries require exit and/or re-entry visas to be issued before their nationals can travel abroad.

The question of returnability is usually a problem for only a few nationals and stateless persons. The requirements for returnability are contained in Paragraphs 21 to 23 of the Rules. Grounds for refusal are given in Paragraph 320(13).

ECOs will need to check that entry clearance applicants have sufficient returnability in one of the following forms:

• a national passport with text or an endorsed re-entry visa entitling the holder to return to the country of issue;
• a non-national travel document with text entitling the holder to return to the country of issue;
• a re-entry visa or permit which will ensure admission to some other country with ample validity to cover the proposed stay in the UK. (Ample validity means the re-entry visa or permission to enter a country should not expire less than two months after the end of the stay in the UK).

8.6 - Factors to consider before a decision is made
If there is no need for referral or deferral, then the ECO must decide on whether to issue or refuse the entry clearance application.

Burden of proof
The burden of proof lies with the applicant. This is implicit in the various sections of the Rules which state that entry clearance may be granted "....provided the Immigration Officer (read ECO) is satisfied that each of the requirements (of the relevant Rules) is met".

This means that the onus is on the applicant to show that he or she fulfils the qualifying requirements of a category in the Rules. If he or she does not produce evidence, or the evidence produced is inadequate, then a refusal will usually be appropriate.

If however, an ECO supports a decision to refuse with evidence or allegations which cannot be substantiated or clearly accepted as reliable, a court/adjudicator could decide that the burden of proof fell on the ECO to justify the refusal.

Provided that the evidence used by the ECO to justify a refusal is factual and clear and it is relevant to the Rules applying to the application, the burden of proof will remain with an applicant. For example, if an applicant in the past had had to rely on public funds in the UK or had a poor immigration record, the evidence would be based on facts. The burden of proof would not be on the ECO.

Reviewing an application before a decision
You may find it helpful to review the details of a case as follows:-
Be clear about what the application is for. Identify the provisons of the Rules which are relevant to the application. Be clear about what information is needed to reach a decision within the Rules.

8.7 - Cancellation of entry clearance
This policy is under review. Staff should contact ECO support if they have any questions.

8.8 Correction of incorrect endorsements
There will be occasions when someone who has been issued entry clearance, has reason to believe, usually after arrival in the UK, that their visa has not been issued with the correct endorsement. In these instances when post has been contacted by a member of the public or representative and are satisfied that the endorsement is incorrect they should:

• write a letter (Annex 8.2) to the individual confirming that post made a mistake when issuing the EC, apologise for any inconvenience and give details of what the correct endorsement should be.
• advise the individual to contact NCC2 ( please see note below for WP/HSMP errors) who can correct the EC free of charge;
• the individuals would need to send this letter, their passports and 2 passport sized photos to the following address:

NCC2 EC ERRORS
9TH FLOOR LUNAR HOUSE
40 WELLESELY ROAD
CROYDON
CR9 2BY

If the enquiry is received from NCC2, post should respond directly to NCC2 confirming whether or not the visa was incorrectly endorsed, and if incorrectly endorsed, advise of the correct endorsment.

Post should reply to NCC2 within 48 hours
Update Proviso to confirm the error and what the correction should be.

GENERAL ENQUIRY CONTACT NUMBER FOR BIA IS= 0870 606 7766

If error is related to correction for WP/HSMP endorsement then these should be sent directly with ppt, 2 photos and the original WP/HSMP document to:

Work Permits Leave to Remain
Workflow team
North East, Yorkshire and the Humber Region
UK Border Agency
PO Box 3468
Sheffield
S3 8WA

ECOs are reminded to check guidance on endorsements before issuing a visa and ensure that the valid from date is the applicant's intended date of travel. Entry Clearance Guidance - Chapter 1