Immigration control can take place in the following locations:
- Overseas before entry to the UK: applications for entry clearance (which will act as leave to enter in most cases) to Entry Clearance Officers;
- At ports on entry to the UK: applications for entry to the United Kingdom to Immigration Officers;
- Within the UK after entry: applications to remain in the UK to immigration caseworkers of the UKVI.
Entry clearance
Entry clearance is immigration control which takes place prior to a person arriving in the UK. Applications are made to entry clearance offices at British Embassies or High Commissions abroad, or to the UKVI via an online application process.
An entry clearance document, often referred to as a visa, can take the form of a sticker (known as a vignette) in the holder’s passport or travel document. For some types of visa, the UKVI now also issue a Biometric Residence Permit – a card – once the person arrived in the UK.
For some countries, the UK always requires entry clearance before travel, for all types of visa. A list of those countries (‘visa national’ countries) is appended to the Immigration Rules (Appendix V, Appendix 2).
For other countries (‘non-visa national’ countries – any non-EEA countries not listed in Appendix V, Appendix 2), the UK allows nationals of those countries to travel to the UK for short periods without seeking entry clearance before travel. They still require leave to enter, but they can apply for that at the port when they arrive.
For anyone applying to enter the UK for a period of more than six months, they must always seek entry clearance before travelling.
What is the procedure for entry clearance?
In dealing with an application for entry clearance for a particular purpose, the entry clearance officer (‘ECO’) or UKVI will apply the immigration rules. The entry clearance procedure requires a form of application to be submitted, together with the appropriate fee, and any supporting documentation. Many of the busiest entry clearance posts now employ an agent or commercial agent to accept and process applications before forwarding them to the entry clearance post for decision.
The application is usually made on-line to a Visa Application Centre (‘VAC’), thereafter the applicant is given an appointment to attend the VAC. At this appointment the applicant must submit the required documentation, pay the application fee and Immigration Health Service Charge (where applicable), and provide biometric data i.e. finger prints and photographs etc. (s.126 of the Nationality Immigration and Asylum Act 2002 requires the submission of biometric information as part of a valid immigration application). Section 14 of the IA 2014 provides for the use and retention of biometric information, but only if it is necessary for immigration and nationality purposes. Biometric data can also be retained for a broad range of non-immigration purposes such as the prevention of crime, protection of nationality security etc. Concerns have been raised about these provisions and the need to ensure that agencies carrying out immigration functions comply with data protection regulation. The applicant may be interviewed, but this is less common.
In some entry clearance posts the practice is for the applicant to attend the VAC for an appointment, thereafter they must send their documents to the UKVI in Sheffield who will make a decision.
What happens if the application is refused?
If the ECO is minded to refuse the application may be reviewed by an Entry Clearance Manager. If the decision is upheld the applicant is informed as to whether they have a right of appeal against the decision.
Can a person travel once they have entry clearance?
Yes – generally entry clearance also operates as leave to enter the UK (Immigration and Asylum Act 1999 and the Immigration (Leave to Enter and Remain) Order 2000), and therefore the person can finalise their travel arrangements. The ECO will make this clear.
Where entry clearance has been granted, a person should be subject to fewer checks on arrival in the UK. However, on arrival an Immigration Officer may examine the grant of entry clearance, and has the power to cancel it if, for example, there has been a change of circumstances or it is shown that the leave was obtained on the basis of false information. See IA 1971, Schedule 2, paragraph 2A.
Leave to enter the United Kingdom
Immigration control takes place at all ports in the UK and is administered by the UKVI. The Immigration Service consists of Immigration Officers (‘IOs’) Chief Immigration Officers (‘CIOs’) and inspectors appointed by the Home Secretary. Leave to enter may be granted abroad (as above) or on entry to those ¬persons not requiring a visa before travelling (i.e. non-visa nationals), for certain categories of 6 months or less. Persons without entry clearance will be required to submit to a more detailed examination by an immigration officer at the port, who will seek to ascertain whether they satisfy the requirements of the immigration rules for the category in which they are seeking to enter. The IO will do this by means of questioning and examination of the applicant’s documents.
What happens if the application is refused?
Whether a person has a right of appeal against refusal will depend on the basis on which they were seeking to enter. Those arriving without entry clearance for temporary purposes have very limited appeal rights. In such circumstances the only in-country remedy may be judicial review.
Leave to remain
Applications for further leave to remain are dealt with by the UKVI and may be granted in accordance with the immigration rules or on a discretionary basis, outside the rules. Applications may be for an ‘extension of leave’ for a further period in the same category (e.g. a student applies for a further period of leave to complete a course), or to vary leave to an alternative category, known as ‘switching’.
What is the procedure for applying for leave to remain?
Most applications to extend/vary leave to the UKVI must be made on prescribed application forms, which are available from the UKVI and can be downloaded from the website. There is a prescribed fee for most applications and since April 2015 a NHS surcharge may be payable.
It is anticipated by the UKVI that applications to vary/extend leave will be made while the applicant’s existing leave to remain is still current. Where an application is made in this way, an applicant may remain in the UK lawfully while the application is being considered (even though the previous leave may expire before the application is decided) and the conditions attached to the original leave remain in force until a decision on the application is made (see IA 1971 s. 3C). If an application is made after an applicant’s leave to remain has expired, the applicant will be an overstayer at the time of the application and therefore potentially subject to immigration enforcement action by the Immigration Service.
What happens if the application is refused?
A client may have a right of appeal to the Tribunal. This will depend on the type of application made and it is likely that a right of appeal will only exist if asylum and/or human rights issues are raised.
Types of application and powers of the immigration authorities
A person who requires leave to enter or remain must make an application to the appropriate body depending on where they are, their circumstances and the purpose of their application. The immigration authorities (abroad, on entry or after entry) have powers to grant or refuse leave to enter or remain and the UKVI can “curtail” existing leave in certain circumstances. The immigration rules set out the criteria for most applications and there are also general grounds in the immigration rules on which applications can be refused. In some circumstances the application will be outside the rules and based on asylum law, human rights law or at the discretion of the UKVI.