How to get past customs in the UK (close to visa expiry)

[mjwall]

Hi all.

OK that subject sounds a bit dodgey, however, this is a legitiment case. I am currently on a Australian Passport (Working Holiday Maker) and my visa ends on the 16th March, 2005.

I am flying back home to Australia on the 4th Feb for family reasons and will be returning on 21st Feb, 2005.

The reason I am coming back is I will be applying for the HSMP visa almost immediatley. I can't do so now due to earnings and proof of 2 years with my partner. However that is beside the point.

When I get back to the UK, how should I approach the subject with UK Customs. I totally understand that it does look a bit dodgey flying from Australia to the UK with three (3) or so weeks remaining on my visa.

I know I am legally allowed to continue on the WHM rules while my HSMP application is being processed.

What do I tell customs when (I am assuming the worst) they realise I have 3 weeks left?

Do I:

(a) Book a cheap European flight now, and take that with me when I return to the UK and explain that I am back after family isues and I am going to finish my job up and travel for 6 months in Europe?

(b) Tell the truth. Say that I am applying for the HSMP and show all my paperwork that I need to post to the Home Office with forms / original documents etc?

(c) Is there any other option??

I was wondering if I should call the Home Office and ask them about my situation. I can't change flights to Australlia as they are frequent flyer's and a freebie flight! The dates just happened to be close to my visa expiry.

Any feedback or similar cases from you would be good!

Kind regards

Matt

[hk_007]

To be fair it does not sound dodgey to me at all. It is perfectly acceptable to go and attend pressing family issues even if there are only a few weeks remaining in your visa. Additionaly, you have every reason to come back and finish your remaining period of work contract. So its a simple case of going home in an emergency and returning to complete your work contract. It is better not to bring in more parameters to confuse the issue.

[bani]

the problem is they might expect you to already have a return ticket to Oz with 3 weeks left on your visa. and if you tell them of the HSMP application, they might prefer you to be an out of country applicant. i personally would go with option (a) if pressed for your travel plans, it sounds safest.

[John]

Matt, I agree with HK_007, this does not sound dodgy at all. You will have a valid visa, albeit one that only has say three weeks to run.

As regards the options you list, always .... tell the truth!

Finally, one last point, it is not customs you need to worry about, unless you are intending to smuggle contraband goods .... but before you get that far you need to get past the Immigration Service.

[ameba]

As far as I know, even if you have applied for an HSMP visa, you are not allowed to stay in UK if you current visa is expired. That is why the HSMP team returned all passports/travel documents to people and do not require ones anymore.
Is it true?

[John]

Ameba, have a read of :-

Section 3C of the 1971 Act

That is :-

It automatically extends the leave of a person who has made an application for further leave to remain during a period of extant leave. Technically, the leave is "treated as continuing". The purpose of the provision is to protect the applicant from becoming an overstayer while the application is being considered.

-: etc etc

So as long as the new application is made before the old one expires, the old one is "treated as continuing", even though the stated expiry date has passed .... while they consider the new application.

[Kayalami]

mjwall,

As per comments by others:

1. Nothing dodgy per-se about your plans.

2. Answer truthfully as to the purpose of your entry when asked by the Immigration Officer i.e to continue your WHV to completion. If IO lands you then you may or may not deal with customs depending on whether you have gone to the 'anything to declare' (red) channel or are pulled in randomly/for quality control where you have gone to the 'nothing to declare' (green) channel.

3. Would have to respectfully disagree with John regarding Sec 3C - this applies to an application that is solely for further leave to remain in the UK.

HSMP is in 2 stages - HSMP scheme (part 1) approval then for an in country applicant HSMP FLR approval (part 2). Part 1 which you intend to use to extend your stay in the UK is not the FLR stage so you would be an overstayer post expiry of your WHV i.e. sec 3C is moot.

Both stages have ever increasing processing times. Stage 1 currently = 24 weeks unless you have a job offer at 6 weeks + stage. Stage 2 = 10 weeks unless there is an urgent reason to expedite it. You need to switch to another category before your WHV expires - for Sec 3C to apply this has to be a FLR application. The only realistic self supported options are:

i) Visitor - you will get 6 months which given the said processing times is an issue if you aspire to get both HSMP approval and HSMP FLR within this time frame. Further you cannot work or apply for HSMP FLR when a visitor.

ii) Student - to switch must be a degree level course as per new regulations. You have more time here and can switch to HSMP FLR (if graduated so likely to be MSc course)

Alternatively get a company to sponsor a full/standard WP for you before your WHV expires then apply for WP FLR (again before your WHV expires) - in this way 3C is operational and you can continue to work (only for your current employer) until WP FLR granted when you can work for the new employer. Given the lengthy IED FLR times you may have to apply for WP Visa at a British Diplomatic Post Overseas and will probably have to go back to Oz unless someone nearby agrees to take your application e.g. Paris.

Good luck

[try-one]

Kalayami,
One quick question, I saw some postings regarding "staying in the UK until the HSMP application ws dealt with"....and aparently you could stay in country until they solved the application.......
You mention that you can only stay for stage 2 of the HSMP. Can you please elaborate more about the right to stay after the visa has expired while waiting for HSMP. If I hold a WP, and expires now, but my HSMP will be solved in 10 weeks or more, can I stay? or should I go back home and wait for a response for my HSMP (just trying to understand the situation while the HSMP is solved)....

[John]

Kalayami, as regards Section 3C, which I quote in full below, isn't it as simple as this? (that is a genuine question!)

Someone has an existing valid visa and before it expires they apply for a new visa in the UK ... if "when it expires, no decision has been taken on the application" .... "His leave is to be treated as continuing" and that clearly refers to the old visa, the only one that is valid at the point in time.

Section 3C does not specifically refer to FLR. It therefore covers all sorts of situations, such as someone in the UK on a spouse visa who during the last month of validity of that visa applies for ILR, and where the application for the ILR has not been dealt with before the 2-year visa expires.

As the IND webpage I linked to previously says :-

The purpose of the provision is to protect the applicant from becoming an overstayer while the application is being considered.

Continuation of leave pending decision.

3C. - (1) This section applies if-

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State, before his leave expires, for it to be varied; and

(b) when it expires, no decision has been taken on the application.

(2) His leave is to be treated as continuing until the end of the period allowed under rules made under paragraph 3 of Schedule 4 to the Immigration and Asylum Act 1999 for bringing an appeal against a decision on the application.

(3) An application for variation of a person's leave to enter or remain in the United Kingdom may not be made while that leave is treated as continuing as a result of this section.

(4) But subsection (3) does not prevent the variation of an application mentioned in subsection (1).

[tvt]

As Kayalami said, s. 3C refers exactly to a variation of a leave to remain. HSMP application is not an application to vary one's leave but an application for an eligibility under the HSM scheme. The best is to email HSMP in-country team and ask them what to do. I reckon that by concession the HO treats the HSMP application as if it were an application to vary an LTR. But you must have it in writing.

[hk_007]

Just my thoughts...

For the sake of argument even if the application period for HSMP is covered, once the outcome is communicated to applicant, the applicant will technically become illegally resident at this point (since no applications in process) and hence would be ineligible to apply for FLR and could also be treated as a over-stayer.

[MWazir]

HSMP is in 2 stages - HSMP scheme (part 1) approval then for an in country applicant HSMP FLR approval (part 2). Part 1 which you intend to use to extend your stay in the UK is not the FLR stage so you would be an overstayer post expiry of your WHV i.e. sec 3C is moot.

I have been under the impression that you have the right to remain in the country and await the results of your HSMP application. This means people cannot just apply for HSMP just before the expiry of their current visa as they will be over stayers. A lot of us have aired the view that this is an abuse of the system. By this interpretation it is not a legal glich.

The HSMP approval letter does compliment what you are saying.

We advise you to apply for further leave to remain as soon as possible, and in any event within six months from the date of this letter. An application should be made before current leave to remain expires

The sentence is not in bold in the approval letter
Therefore if your current leave to remain has expired (as it would be in this case) then you will not be able to file for FLR.

[f2k]

dont in country applicants submit their HSMP and FLR at the same time? if they do then if you apply before your current LTR has expired then you should be ‘OK’. I think one of the moderators (maybe Kayalami) did raise that point and said how it was potential way 4 pple to abuse the system. Cause you just submit your HSMP and FLR at the same time a couple of days b4 your LTR expires and wait for 10months before you are actually required to leave the country

[tvt]

An FLR application can only be lodged once an IED document (WP/ HSMP/ TWES/ SWS) has been successfully obtained.

[drewchad]

It was my understanding, mostly based on what I read on these boards, that you need to send off an FLR application (with your passport) before your current visa expires.

I am in exactly the same boat as you mjwall but need to come back through immigration with only a few days left on my current working holiday visa. I will probably just say I am leaving in those few days when questioned by immigration officers and book an onward flight somewhere to prove I am leaving.

Below are excerpts of an email sent to HO to back this up:(when they were actually replying to emails)

"It looks like my application won't be processed before my visa runs
out.
> What is the procedure involved in staying in the UK while waiting for
the
> outcome of the application?"



"You need to submit the FLR(IED) form before your visa expires in order
to
remain in the UK."


Comments appreciated...

[hk_007]

Below are excerpts of an email sent to HO to back this up:(when they were actually replying to emails)

"It looks like my application won't be processed before my visa runs
out.
> What is the procedure involved in staying in the UK while waiting for
the
> outcome of the application?"

"You need to submit the FLR(IED) form before your visa expires in order
to
remain in the UK."

Don't see how this can work out. If your FLR comes up for processing before you know the outcome of your HSMP application, then there is no case for FLR and it will certainly be rejected. If it is the other way round, your case might get considered. Either way, you will have to send your passport for FLR, so you will not be able to travel.

[John]

drewchad, what you say is confirmed by :-

Forms and Guidance

In particular the section of that webpage headed "Leave to Remain(LTR)". Notice what it says about "From 1 April 2004 there will be changes to the way limited Leave to Remain (LTR) applications are made. From this date ......".

In other words it is quite clear that a change of procedure took place effective on 01.04.04.

So it is quite clear to me that in respect of the visa application being made on the form FLR(IED), Section 3C is indeed in play. That is, the previous visa is treated as continuing until IND deal with the new application, even though the expiry date on the old visa has passed.

Or put it another way, is there any evidence that IND do not consider Section 3C being in play when a form FLR(IED) has been submitted?

[mjwall]

Wow you guys have been busy! I have been in close contact today about this issue with my Accounting / Visa company. They have said today ...

I have spoken to the In Country Team (John) who deal with leave to remain applications and he has told me that you are not able to work if your current leave expires regardless of whether your HSMP application was submitted before your working holiday visa expires.

I then contacted the HSMP team (Adrian) and he confirmed with his manager and told me that you are able to work until a decision is made on the HSMP application. What he could not answer was the issue about the leave to remain.

I also read him the policy information that you quoted on your email, however I have requested for him to put it in an email and send it to me confirming that you will be able to work.

He will get back to me this afternoon with a definite answer and once he does, I will let you know.

Everyone keeps telling us conflicting information and until we have everyone agreeing to the same thing I am still going to be on the understanding that you are not able to continue working. I can understand this is a bit inconvenient for you but we should have an answer before the end of the day.

Will keep you updated guys. I also rang the Immigration & Nationality Directorate today, spoke to a girl there and asked her if I am still allowed to stay and work in the UK while my application is being processed, she asked her manager who replied with a big YES.

Further more, I would like to hear what you all think about the 2002 Ammended Section 3C of the 1971 Act..

I will await the correct answer today or tomorrow and keep you all posted.

[Kayalami]

John,

It seems you misunderstand me. Sec 3C refers to applicants who have made an application for further leave to remain in the UK whilst they have valid leave to remain so they do not become overstayers - I believe we both agree with this.

Applying for the HSMP scheme is not in itself an 'application for further leave to remain" because it is a 2 stage process. Only applying for FLR on Form FLR(IED) after HSMP Approval counts as an FLR application. The original poster intends to apply for the HSMP scheme to extend his stay in the UK - during part 1 of the application his leave will run out. Since part 1 is not an application for FLR he will as per the immigration rules become an overstayer.

Perhaps the Home Office are approving FLR(IED)/ stage 2 cases where an HSMP applicant obtains HSMP Approval (stage 1) during a period where his leave expires but he/she had applied for the scheme during the validity of his/her last leave. If so then this is a discretionary policy - it is not published to the public or AFAIK to practitioners in the immigration field.

You may wish to refer to the HSMP FAQ for suggestions as to how to deal with such situations. It is up to an applicant to decide on taking a risk of the HO applying discretion when applying for FLR where their visa has expired. I would take/ consider e-mails from the Home Office at face value on this position - I would only consider a hard copy written note from the HO with their letterhead and signature of an official therein on taking a position on an immigration matter that does not fall within well known operational policy (including discretion) and/or the immigration rules.

[John]

It is very clear that a number of posters in this thread are not convinced that Section 3C applies. However hopefully what follows in this posting will convince everyone.

The "modern style" of IND's forms is that the guidance to a form is contained within it. Accordingly you are invited to look at the FLR(IED) form. It is 18 pages long but it is page 14 that is of interest in this context.

There is a section headed "2. When should I apply?" and that includes this paragraph :-

You are unable to start work until you have received approval for your further leave to remain application against your IED, unless you already have leave to enter or leave to remain in an immigration category that allows you to continue or take full time work with your current/prospective employer. See Part 3 of these guidance notes ‘When can I start work?’ for further details.

And in Section 3 we can read :-

If you have leave to enter or remain in an immigration category that allows you to work, you can take up employment while your leave application is being processed. Examples of these categories include Working Holiday Makers, HSMP applicants.

OK, IND do not by name refer to Section 3C, or use the words stating that the old visa is "treated as continuing". However, I do not think it is possible to read the words that IND do actually use in any other way. That is, if you had a valid visa that allowed you to work, and have applied for a new one but have yet to hear the result of that application, the permissions under the old visa do indeed continue to let you work until you hear the result of your application.

To mjwall I simply say, refer your advisers to the guidance on the form FLR(IED) !

Where can you easily get the form FLR(IED)? If you use the link in my posting yesterday timed at 8.03pm UK time, the form can be downloaded from that webpage.

[Kayalami]

John,

Would you agree that applying for Approval on the HSMP scheme (stage 1) is not an application for further leave to remain in the context of the immigration rules?

[tvt]

I would just add that the same principle applies to the WP application stage of a WP category. However, since WP processing times are quick (few days) the question is academic.

[drewchad]

Just got back from Paris yesterday, with 5 days left on my WH visa I was quite worried about clearing immigration.
Fortunately the Immigration officer wasn't really interested (you'll find that a lot with people in the UK) all she asked me was "you're leaving in December, Yeah?" as she reached for her stamp. So I said yes & went straight through, total time 5 seconds.
I was preparing to say "to finish my working holiday visa" and to show them a ticket I had purchased to New York the day before my visa expired, but luckily I didn't need to.
Now the next hurdle is sending in the FLR form today, goodbye passport...

[mjwall]

FYI



From: Workpermits, Ops2 In Country
[Ops2.In-Country@ind.homeoffice.gsi.gov.uk]
Sent: 22 November 2004 08:34
To: Nikki Pala
Subject: RE: Working after Leave to Remain Expires

Dear Sir/Madam,

In response to your query below. If you submit an FLR(IED) application
before the expiry of your current visa, then you are entitled to remain
in the United Kingdom under the same conditions of that visa until such
time as a final decision is made on the application. This applies your visa
expires whilst the application is still under consideration.

You are therefore only entitled to work as specified on the visa you were holding at the time your application was made.

Yours sincerely,

Ops 2, In Country
Work Permits (UK)
PO Box 3468
Sheffield
S3 8WA

Tel: 0114 274 3304/5
Fax: 0114 274 3101/2


> -----Original Message-----
> From: Nikki Pala
> Sent: 18 November 2004 10:04
> To: ops1.in-country@ind.homeoffice.gsi.gov.uk
> Cc: ops2.in-country@ind.homeoffice.gsi.gov.uk
> Subject: Working after Leave to Remain Expires
> Importance: High
>
> To Whom It May Concern:
>
>
>
> After attending the Work Permits UK conference on the 5th November
2004,
> it was confirmed that an applicant who applies for the Highly Skilled
> Migrant Visa could continue to work in the UK as long as their Leave
to
> Remain remained valid.
>
>
>
> However, if the leave expires while the application is being processed
are
> they still able to continue working until a decision is made on the
> application.
>
>
>
> I have been receiving conflicting advice on this topic, both from Work Permit UK caseworkers and IND. I have been told that they can continue their employment as long as their visa was valid at the time of application (regardless of Leave to Remain status).
>
>
> SECTION 3C OF THE IMMIGRATION ACT 1971 (AS AMENDED)' as found here:
>
<http://www.ind.homeoffice.gov.uk/ind/en ... licy_instr
uctions/apis/section_3c_of_the.html
>
>
>
> QUOTE: "If that leave expires before a decision is taken, section 3C
> extends it (in effect) until the end of the time limit for appealing
> against a decision (i.e. 10 working days from receipt of the notice of
> decision)."
>
>
>
> I would appreciate written clarification on this point.
>
>
>
> Thank you
>
> Nikki Pala
>
> Nikki Pala
> Immigration Services Manager
>

[f2k]

You mentioned there that you were at the conference, any chance of getting the minutes and those of one that was in September. Maybe you can feel us in on what went on