Recent changes to the way in which immigration applications are processed means that most in-country applicants will have possession of their passports while awaiting a decision on permission to stay in the UK. However, this has created a great deal of confusion, where applicants are often unsure as to whether they can travel outside the UK during this period.
The following guide for visa applicants looks at the rules relating to travel outside of the UK pending an immigration decision, and provides a full and detailed response to the frequently asked question: “Can I travel while my visa application is being processed?”.
Will I have a passport while my visa application is being processed?
When applying for a visa, settlement or citizenship in the UK, you will either need to verify your identity by using an online IDV (identity verification) app or, alternatively, attend an in-person appointment at an UKVCAS service point to provide proof of your identity, your biometric information and any supporting documents. UK Visa and Citizenship Application Services (UKVCAS) is the official partner of UK Visas and Immigration (UKVI), providing administrative services in connection with immigration applications, whereas UKVI is the division of the Home Office responsible for making visa and immigration decisions.
If you are eligible to use the IDV app, you will be told when you start your online UKVI application. If given the option of using the app, this will enable you to verify your identity and re-use your existing biometrics from a previous application. It will also allow you to upload your supporting documents, which will be sent directly to UKVI. In this way, a decision can be made on your application without the need for an UKVCAS appointment.
However, even if you are required to attend a face-to-face UKVCAS service point, changes to the way in which UKVCAS are processing applications means that your passport or other travel document will not usually be retained until a decision is made by UKVI, but rather it should be immediately returned to you once this has been used to verify your identify.
Rules on retaining passports pending decisions
Under paragraph 34(5) of the UK’s Immigration Rules, you must provide proof of your identity when making an application for leave to remain, including all extension applications and any switching between visas, as well as applications for settlement and citizenship. In most cases, proof of identity will mean a valid passport or other travel document. However, pursuant to paragraph 34J (introduced in October 2021), any proof of identity provided will usually be returned to you while your application is being considered.
The only exception to the new rule on returning an applicant’s passport or other travel document is “unless the Secretary of State considers it necessary to retain it”. This essentially means that, in very limited circumstances, a decision will be made to retain an applicant’s proof of identity. However, generally speaking, this will only be considered necessary where an applicant is either an overstayer or in the UK as a visitor.
If I have my passport, can I travel while my application is being processed?
With visa applications regularly taking several weeks or months to be decided by UKVI, and with any passport or travel document in hand, it is not uncommon for applicants to want to travel outside the UK prior to a decision having been made. This could be, for example, to take a holiday, to visit friends and family living abroad, or for an overseas business trip.
Still, even if there is a legitimate reason for wanting to travel outside the UK, and with very limited exceptions under the Rules, the short answer to the frequently asked question “Can I travel while my visa application is being processed?” is usually “NO”.
The fact that you have not been required to give up your passport does not, of itself, give you permission to travel abroad. This is because, if you have applied for either further or indefinite leave to remain, paragraph 34K of the Immigration Rules provides that where a decision has not been made on an application, and the applicant travels outside the Common Travel Area (CTA): “their application will be treated as withdrawn”. The CTA refers to the UK, as well as to the Channel Islands, Isle of Man and Republic of Ireland.
The restriction on travel is not very well-advertised when making a visa application. The restriction is also often inconsistently enforced, where UKVI may not even be aware of any absence unless the applicant declares this in later applications. Still, the risks of travelling outside of the CTA are serious, including being refused entry at the UK border. Below we look at the rules relating to overseas travel, together with the exceptions to these rules.
Rules on overseas travel with a pending immigration application
If you travel outside the CTA before a decision is made on your application to stay or settle in the UK, UKVI will automatically treat your application as withdrawn. In turn, if your application is withdrawn because you have used your passport to travel abroad while awaiting a decision, you will no longer have an application pending with UKVI. As such, depending on whether or not your previous visa remains valid, this will not only determine your right to re-enter the UK, but also your ability to make a fresh in-country application.
If you applied for further or indefinite leave to remain prior to expiry of your previous visa, but still had existing leave when you left the UK, known as extant leave, unless the visa expiry date has since passed, this leave will still be valid. In these circumstances, you should be allowed to return to the UK, but you would need to file a fresh visa application.
In contrast, if you applied for further leave prior to expiry of your previous visa and transferred onto what is known as section 3C leave, because your visa expired while awaiting a decision, your section 3C leave will have expired on the date that you left the UK. This means that you will be refused re-entry back into the UK, as you no longer have a valid visa, and you will also be out of time to renew your application to UKVI for further or indefinite leave to remain. The purpose of section 3C of the Immigration Act 1971 is to prevent anyone who has made an in-time application to extend their leave from becoming an overstayer pending a decision on their application. However, this leave will automatically lapse if you travel outside the UK during that decision-making period.
If you have an outstanding visa application and travel outside the CTA, that application will not provide you with any right to re-enter the UK to receive a decision. This is because the application will be automatically treated as withdrawn. This means that you will probably be refused entry to the UK unless you are allowed to re-enter with a different type of leave, for example, if your existing leave has not yet expired or if you have made, and have been successfully granted, another immigration application before returning to the UK.
The following example clearly illustrates how travelling outside the UK can cause serious and potentially very costly problems for an applicant:
Sarah, an American national, was originally granted permission to live and work in the UK on the basis of her marriage to Mark, a British citizen. Sarah filed an extension application on 1 September 2022 and her original grant of leave expired on 4 September, such that Sarah was benefitting from section 3C leave. As Sarah needed to travel to the States for business, she left the UK on 1 October and attended a series of meetings over the course of just one week. However, when Sarah tried to re-enter, the UK Border Force Officer refused her entry, explaining that leaving the UK had withdrawn her extension application. Sarah was also refused entry to the UK as a visitor because she was clearly not a visitor. Sarah was therefore forced to return to the US and file a new partner application from outside the UK.
Rules on overseas travel with a pending citizenship application
If you have made an application to naturalise as a British citizen, the rules relating to travel are different. Generally speaking, applicants can travel outside of the CTA while awaiting a decision. This is because, to be eligible to apply for citizenship by way of naturalisation, you must already have indefinite leave to remain. In turn, with the grant of indefinite leave, and provided you do not remain outside the UK for any longer than 2 years ‘and’ maintain an intention to settle in the UK, you are permitted to travel freely in and out of the country. Further, citizenship applications are not actually made under the Immigration Rules.
Equally, if you have submitted an application to settle under the EU Settlement Scheme (EUSS), your application should not be treated as automatically withdrawn if you travel outside the CTA. This is based on the most recent caseworker guidance for EUSS applications, which states that an application made under Appendix EU (which sets out the rules relating to these applications) will not be treated as automatically withdrawn if an applicant travels outside the CTA before the application has been decided.
There is, of course, a great deal to be said about proposals for reform in the context of permissible travel pending decisions on all other immigration applications. Despite all the recent changes to the UK’s Immigration Rules, it still appears to be a rather archaic system when individuals who are desperate to travel outside of the CTA have to choose between maintaining their lawful immigration status and visiting loved ones, or simply getting on with their jobs and lives as they would normally. The exceptions to the travel requirement in the context of naturalisation and EUSS applications show that applicants can still have the intention to remain and live in the UK, while travelling for family or work reasons during the typically lengthy processing periods. Such applicants can also be easily contacted by UKVI.
However, as the Rules currently stand, applicants awaiting decisions on further or indefinite leave applications must exercise patience and await a decision before leaving the CTA. It is therefore important that travel plans are put on hold once a visa application has been filed from inside the UK or that applicants are fully aware of the potential risks before departure.
Can I cancel and re-submit my visa application at a later stage?
If you have submitted an application for further or indefinite leave to remain and would like to withdraw that application, either because you have to urgently travel overseas or for any other reason, you can ask UKVI to cancel, or withdraw, your application online.
You will be entitled to a refund of the immigration health surcharge paid if you cancel before a decision has been made by UKVI about your application. However, whether or not you will be entitled to a refund of the application fee will depend on what stage your application is at when you cancel. Your fee should still be refunded, provided you have not yet attended an UKVCAS appointment and enrolled your biometric information. Equally, if you were not required to attend an appointment in the first place, because you were eligible to use the IDV app to prove your identity, you can again cancel your application and should receive a fee refund, provided you have not yet uploaded your documents.
Importantly, however, whether or not you can subsequently re-submit the same application having left the UK is by no means guaranteed. If your existing leave is due to expire or has already expired, you may lose your permission to stay in the UK. This means that you would need to make a fresh application from outside the UK before being able to return. In some cases, by leaving the UK, this could also impact your eligibility, for example, this could break your continuous residence period for the purpose of an indefinite leave application.
If you make a decision to withdraw a visa application, you cannot stop the cancellation once this request has been received by UKVI, so it is always important to seek expert legal advice from an immigration specialist before deciding whether to cancel your application. Equally, advice should always be sought before risking taking a trip abroad while awaiting a decision on your application. In this way, all options can be explored to protect your position, including paying to expedite any decision using UKVI’s priority services.
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DavidsonMorris are UK immigration specialists. Contact us for expert guidance and support with your UK visa and nationality application.
Travel during the application process FAQs
Can you travel while visa application is being processed UK?
If you have applied to switch to another visa from within the UK or for a visa extension, including applications for ILR, you will not be permitted to travel overseas until you have been given a decision.
Can you travel while UK citizenship application is pending?
If you have made an application to naturalise as a British citizen, generally speaking, you will be able to temporarily travel overseas while awaiting a decision from UK Visas and Immigration, provided you still intend to settle in the UK.
Last updated: 17 November 2022
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
