27 Mar Making an Immigration Application

Making an Immigration Application

How to Calculate the Application Date for Leave to Remain and Why It Matters

By Arona St James Solicitors

March 2025

The date you apply for leave to remain in the UK is crucial. It affects your legal status, work rights, ability to rent property, access to banking, and driving licence eligibility. A late or invalid application can also derail a future Indefinite Leave to Remain (ILR) application.

Applying before your visa expires ensures your leave continues automatically under section 3C of the Immigration Act 1971. This means you won’t become an overstayer while waiting for a decision. However, if your leave has already expired, you may still be able to apply under paragraph 39E of the Immigration Rules, which allows for limited discretion in cases of short delays.

Why Applying Online is Best

Most applications are now submitted online, offering key advantages:

• Fixes Your Application Date Instantly – You lock in your application date as soon as you submit it, preventing any last-minute issues.
• No Risk of Using Outdated Forms – Online applications automatically use the latest version.
• More Time for Supporting Documents – Unlike postal applications, you don’t have to submit documents immediately, giving you extra time to gather them.

How to Calculate the Application Date

Your application date depends on how you submit it:

• Online Applications → The date of submission is your official application date.
• Postal Applications (Royal Mail) → The date on the postmark or tracking receipt.
• Courier Services → The date the Home Office receives your application.
• Fee Waiver Requests → The date you submit the fee waiver request counts as your application date, as long as you submit the full application within 10 working days of the waiver decision.

What If You Need to Apply Last Minute?

If you are running out of time:

• Apply online before your leave expires to secure an in-time application.
• Ensure your application is valid – errors can lead to an invalid application, putting you at risk of overstaying.
• If your visa has already expired, check if you qualify under paragraph 39E for discretion on late applications.

Understanding Discretion Under Paragraph 39E

Discretion plays a critical role in caseworkers’ decisions under paragraph 39E of the Immigration Rules, particularly in assessing late applications. Key points include:

Exceptional or Compassionate Circumstances

Caseworkers can exercise discretion for applications submitted after the 14-day period if exceptional or compassionate circumstances prevented timely submission. Examples include serious illness or prolonged medical conditions.

Case-by-Case Assessment

Discretion is applied individually, considering the plausibility of reasons, whether the situation was genuinely beyond the applicant’s control, and the credibility of evidence provided.

1. Higher-Level Authorisation

• Decisions to exercise discretion must be approved by a senior officer (Higher Executive Officer grade or above), ensuring oversight and consistency.

2. Evidence Requirements

• Applicants must provide evidence of exceptional circumstances at the time of application. Failure to do so often results in rejection, as discretion cannot be exercised without sufficient proof.

3. Balancing Flexibility and Fairness

• While discretion allows flexibility, it must align with procedural fairness and public law duties, such as promoting the best interests of children and compliance with human rights obligations.

Protecting Your Immigration Status

Knowing how to correctly calculate your application date is essential to avoid legal problems and protect your immigration status. While it’s always best to apply well in advance, online systems provide a safety net for urgent cases.

If you need expert advice, contact our specialist immigration solicitors to ensure your application is timely, valid, and compliant with UK immigration rules.

If you need help, we are happy to assist and support you through this process.

Please get in touch with us on 0208 175 5000 or email hello@aronastjames.co.uk