All entry clearance applications are made from outside the United Kingdom at the time of application. But what are the rules about what an applicant’s immigration status must be in a country in order to apply from there for entry clearance to the UK?
Clients regularly ask us this question, feeling dismayed about the cost or impracticality of travelling somewhere for the sole purpose of applying for entry clearance.
For example, maybe you’re temporarily working or studying abroad and want to apply for a visa to the UK without incurring the expense of travelling back to your country of nationality. Maybe you urgently need to visit a sick relative or child abroad for a few months and while there you want to apply for entry clearance.
This blog post can help you navigate this tricky and ambiguous area of law.
The Default Position
The default position is contained in paragraph 28 of the Immigration Rules. Applications for entry clearance “must be made to a post in the country or territory where the applicant is living”.
But what does the phrase “where the applicant is living” mean? This ambiguous phrase is not defined in the Immigration Rules.
It is important to remember that, when interpreting the Immigration Rules, they “are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument but, instead sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy” (Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88).
In the Immigration Rules, meaning is “discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates’ Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules.”
The High Court considered the meaning of the word “living” in a country in R (on the application of Barlas) v British Consulate, Amsterdam [2007] EWHC 1709 (Admin). The judge in that case held:
“The words “‘living’ in a country” are ordinary words of the English language. It is inappropriate to seek to elaborate upon them or to add a gloss on them, which has the effect of cutting down their natural meaning. [……] paragraph 28 is flexible and should be applied with discretion and common sense.
[.…..] the purpose of the requirement that a person should be living in a relevant country in paragraph 28 is essentially to focus attention upon the fact that this is the place where a person is present in any capacity other than as a short-term visitor, and has permission from the relevant authorities to be so.
There is no suggestion in [the previous Home Office guidance document], correctly in my view, that the Immigration Rules require permanent residence or some similar long-term status in the relevant country to be enjoyed, before a person can be said to be living there.
[…….] While a person, who is only on a short visit or business trip to a country, will not qualify because they could not reasonably be said to be living in that country, others will be able to do so even if they are a long way away from their country of nationality or permanent residence.”
The judge suggested in Barlas that the question of whether someone without lawful status (i.e. permission) from the relevant immigration authorities could reasonably be said to “live” in the country remained open:
“It may well be that as was submitted, on behalf of the Secretary of State, paragraph 28 should not be interpreted in a way which would benefit a person who was illegally in a country, for example, a clandestine entrant, or one who has gone underground having perhaps been admitted as a lawful visitor. Even then it might be said that such a person was in fact “living” in a country, albeit illegally, but it is unnecessary for me, on this occasion, to go into that.”
Barlas is a useful precedent for applicants who do not want to apply for entry clearance from their country of nationality. A status less than permanent residence or long-term status appears to be sufficient to be “living” in a country, though status as a short-term visitor is likely insufficient.
However, Barlas was decided before the introduction of paragraph 28A, which introduced exceptional categories (addressed below). The introduction of paragraph 28A changed the context in which paragraph 28 must be read and interpreted, creating further ambiguity as to the precise meaning of the phrase “where the applicant is living.” Applicants erring on the side of caution would be advised to consider applying either from their country of nationality or else from a country where they are lawfully living with some form of long-term status.
Determining whether your particular circumstances amount to living in a country can be a very fact-specific issue. Our immigration barristers are able to offer professional legal advice that is tailored to your particular circumstances.
Exceptions to the Default Position in Paragraphs 28 and 28A
The four exceptions to the default position in paragraph 28 are as follows.
- Firstly, if there is no designated post in the country where the applicant is living, the applicant must apply to the “appropriate designated post outside the country or territory where he is living.”
For example, entry clearance applicants from Burundi can currently apply through Rwanda and applicants from the British Virgin Islands through Barbados. A full list is available here: https://www.gov.uk/find-a-visa-application-centre.
- Secondly, entry clearance applications for visit visas, short-term student visas and Appendix Ukraine Scheme visas may be made to “any post designated by the Secretary of State to accept such applications”.
There is no requirement for the designated posts to be in the country or territory where an applicant is living, though the Home Office’s where to apply policy suggests that applicants “should be present legally in that country or territory.”
- Thirdly, applications for entry clearance under Appendix Temporary Work – Creative Worker can be made in whichever country the applicant is situated, provided the application is made to a designated post, the applicant is in the country for a similar purpose to the activity she proposes to undertake in the UK, and she “has authority to be living in that country or territory in accordance with its immigration laws.”
This is purportedly an additional option for applicants in this category, although one might question whether a person who is situated in a country and has authority to live there could already reasonably be said to be living in that country (even if only temporarily or as of recently).
“Be living”, in this context, does not appear to require anything more than “staying”. The Home Office’s where to apply policy states that applicants in this category simply need to “be present legally in that country” and there “for a similar purpose to the activity you are proposing to do in the UK.”
- Fourthly, applications for Global Talent visas and Appendix Youth Mobility Scheme visas may also be made in whichever country the applicant is situated, provided that the application is made to a designated post and the applicant has authority to be living in that country in accordance with its immigration laws and that authority allows them “to live in that country or territory for a period of more than 6 months.”
This is also purportedly an additional option for applicants in these visa categories. But again, it is unclear when someone who is situated in a country and has permission to live there for more than 6 months could not already rely on paragraph 28 and reasonably claim to be living in that country.
The Home Office’s where to apply policy suggests again that “live”, in this context, simply means “stay”. It says applicants only need “permission to be there for more than 6 months.” This means, for example, individuals with long-term work or student visas abroad can make entry clearance applications for these visas from the country where they are working or studying.
What Is the Point of These Rules?
Requiring applicants to have a relatively stable or longer-term status in the country of application makes a degree of sense. Applicants for entry clearance usually have to hand over their passports at their biometric appointment for processing. It can sometimes take a long time for passports to be returned, for example if there are delays. It would therefore be problematic if applicants were unable to leave the country of application in order to comply with their conditions of stay due to an outstanding application for entry clearance to the UK.
Contact our Immigration Barristers
For expert advice and assistance regarding applications for all types of entry clearance applications and appeals, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
