The roll out of eVisas is likely to have the biggest adverse impact on those people who hold a “legacy” document, i.e. evidence of their immigration status that was issued before the introduction of biometric residence permits. One of the reasons for this is that there is an additional step that they need to complete before they can apply for their eVisa, which is to make a “no time limit” application which, if successful, will mean that they are issued with a biometric residence permit confirming their indefinite leave to enter or remain.
Who needs to make a “no time limit” application?
People can make these applications if they have indefinite leave to enter or remain and:
- they have an old-style immigration document, for example a status letter, passport stamp or a vignette (sticker) in a passport.
- the document confirming their status has been lost, stolen or has expired
- they do not have any documentary evidence confirming they have indefinite leave to enter or remain
- they need to amend their details, for example the name on their immigration document
How to apply
The application is made online and dependants can be included as long as they also hold indefinite leave. These applications previously cost £248.20 but have been free since April 2022, which is when online checking services for right to work or rent were extended to biometric residence permit holders.
Consideration of the application
The Home Office caseworker guidance says that checks will be carried out to ensure that the applicant has been granted indefinite leave, that their identity has not changed (or if it has that the change is legitimate) and they have provided photographic documentary evidence of their identity (for example a passport or national identity card).
They will also check that the person has not lost their indefinite leave due to absence from the UK. This is the biggest risk with these applications, as people will be required to provide proof of residence in the UK over a very lengthy period of time without gaps. Where there are gaps, the risk is that the Home Office may consider that they were out of the country for two years such that their indefinite leave lapsed.
The guidance tells caseworkers that they “should work flexibly with applicants to help them evidence their residence in the UK by the best means available to them and should exercise discretion in favour of the applicant where appropriate.” Anyone making an application where proof of residence may be an issue should direct caseworkers to this section of the guidance.
The caseworker will also check that the leave has not been revoked or renounced and that the person is not a British citizen, an EEA national with EU settled status or a right of abode.
The guidance says that applications will be refused if:
- the caseworker is not satisfied that there are genuine reasons why a person has changed their identity and/or that the new identity will be used for all purposes
- there is not enough evidence the applicant has indefinite leave
- the applicant submitted false documentation or made false representations
- the applicant has lost their indefinite leave status, or this has been revoked
There is no right of appeal against refusal of a “no time limit” application and so the appropriate remedy will be judicial review.
What happens if the applicant cannot provide evidence of their indefinite leave?
The guidance says that where a person has not included their previous passport or immigration status document then the caseworker must “check all available systems and files for evidence”, including case working systems, Home Office files and visa application forms. If the applicant says that their documents were lost or stolen then a crime reference number or police report must be provided.
The guidance does not explain what happens where a caseworker has carried out these additional checks but they also do not disclose a grant of indefinite leave (entirely possible given Home Office record keeping, see also: Windrush). It just says that the application can be granted where the caseworker is satisfied that the applicant has indefinite leave, has not lost it and is not otherwise ineligible for the “no time limit” application.
Conclusion
Anyone who needs to make a “no time limit” application will be well advised to do so without further delay, ahead of the end of year expiry of biometric residence permits and full roll out of eVisas. It remains very difficult to imagine that everyone who needs to make this switch will be aware and able to do so by the end of the year.
