An urgent family bereavement can put someone with a pending immigration application in a difficult position. Travelling abroad may have serious consequences for their application and their ability to return to the UK. But what happens when the applicant asks the Home Office to make an exception and receives no answer?
The Upper Tribunal considered this issue in Secretary of State for the Home Department v A and others, decision references UI-2024-000696, UI-2024-000697 and UI-2024-000698, issued on 25 April 2024. The decision contains important findings about Home Office discretion, unanswered requests and the consequences of earlier administrative errors. It does not, however, establish a general right to travel during a pending application.
What is the usual rule?
Under paragraph 34K of the Immigration Rules, an application for permission to stay is normally treated as withdrawn if the applicant travels outside the Common Travel Area before a decision is made. The Common Travel Area comprises the UK, Ireland, the Channel Islands and the Isle of Man. Current Home Office guidance continues to instruct caseworkers to treat applications as withdrawn in these circumstances. GOV.UK
A family emergency should therefore not be assumed to protect an application from withdrawal. The significance of A’s case is the Tribunal’s finding that the Home Office had discretion and was required to consider a request to exercise it when made on proper grounds.
What happened in this case?
The family had moved to the UK under the ECAA Turkish businessperson arrangements. The Tribunal accepted findings that Home Office errors concerning Mrs A’s immigration documents had caused delays and contributed to the family receiving shorter leave than they should have received. This meant that another extension application became necessary earlier than would otherwise have been the case.
While that application was outstanding, Mr A. needed to travel to Turkey following his father’s death. He sought agreement that his departure would not result in the pending applications being treated as withdrawn. The Home Office did not respond. He travelled on 8 October 2021, and the applications were subsequently treated as withdrawn. At the time of the proceedings, he remained in Turkey while his wife and children were in the UK.
His wife and children later made human rights applications. Following refusal, the First-tier Tribunal allowed their appeals under Article 8 of the European Convention on Human Rights, outside the Immigration Rules. The Home Office appealed, but the Upper Tribunal dismissed that appeal and left the favourable decision in place. These were human rights appeal proceedings, not a judicial review application.
The key finding: the Home Office had to consider discretion
At paragraph 60, the Upper Tribunal rejected the suggestion that withdrawal of the applications was an unavoidable statutory consequence of Mr A.’s departure. It explained that the deemed withdrawal arose under paragraph 34K of the Immigration Rules and that the Home Office had discretion not to treat an application as withdrawn.
The Judge stated that the Home Office was:
“required as a matter of law, when requested to do so on proper grounds, to consider whether to exercise that discretion.”
The Home Office had failed to consider the request. The Tribunal found that this amounted to a public law error and a failure to exercise its immigration functions, with detrimental consequences for the family.
The distinction is between having to consider a request and having to agree to it. The Tribunal found a failure to consider discretion. It did not decide that every request involving a funeral or other compassionate circumstances must be granted.
Why the earlier Home Office errors mattered
The unanswered request was not considered in isolation. The Tribunal also upheld the finding that earlier administrative errors amounted to historical injustice. Those errors had brought forward the need for another extension application, which then coincided with the family emergency. The connection between the errors and the harm suffered was an important part of the reasoning.
At paragraph 64, the Judge referred to Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 and the principle that, so far as possible, applicants should be dealt with as if the Home Office’s error had not occurred. He noted the findings that, without the errors, the family would have received three years’ leave and would have been entitled to settlement under the ECAA after five years in the UK. However, the Judge expressly left the assessment of what leave to grant to the Home Office. The decision did not itself grant indefinite leave to remain.
Does this make it safe to travel?
No. The decision should not be treated as advance permission to leave the UK, and Home Office silence should not be treated as consent. The relevant discussion formed part of the Tribunal’s alternative reasoning, after it had already rejected the Home Office’s pleaded grounds of appeal. It must be read in the context of this family’s particular circumstances.
There is also a separate issue concerning section 3C leave. This can extend a person’s existing immigration permission while a qualifying application is pending, but section 3C(3) of the Immigration Act 1971 provides that the extended leave lapses when the person leaves the UK. This concerns departure from the UK, not just travel outside the Common Travel Area. Legislation.gov.uk
Keeping an application pending is therefore not the same as preserving immigration permission or securing a right to return. Any request concerning withdrawal must be considered alongside the applicant’s existing status and the legal basis on which they could return to the UK.
What should applicants do in an emergency?
Our practical advice is to obtain advice before travelling and make any request for discretion expressly, with evidence of the emergency and an explanation of the immigration consequences. Copies of the request, supporting documents and follow-up correspondence should be retained.
Where travel has already taken place, the full history needs careful examination. Relevant questions include what the Home Office was asked to do, whether it considered the request, whether earlier errors contributed to the situation, and what harm resulted. A. provides a useful basis for examining those issues, but not an automatic answer to every case.
How Garth Coates Solicitors can help
We can review your immigration history, previous applications, Home Office correspondence and family circumstances to assess the available options. Where there are sufficient legal grounds, we can advise on and prepare an appropriate application, request for reconsideration or legal challenge.
The appropriate approach depends on the complete evidence. A favourable decision in another family’s case does not guarantee the same outcome.
This article provides general information and is not a substitute for advice on your individual circumstances.
