The Immigration (Leave to Remain) (Prescribed Forms and Procedures) (No. 2) Regulations 2005

This Statutory Instrument supersedes S.I. 2005/771 and is being issued free of charge to all known recipients of that Statutory Instrument.

Statutory Instruments

2005 No. 2358

IMMIGRATION

The Immigration (Leave to Remain) (Prescribed Forms and Procedures) (No. 2) Regulations 2005

Made

22nd August 2005

Laid before Parliament

25th August 2005

Coming into force

15th September 2005

The Secretary of State, in exercise of the powers conferred upon him by section 31A of the Immigration Act 1971(1), hereby makes the following Regulations:

Citation, commencement and interpretation

1.  These Regulations may be cited as the Immigration (Leave to Remain) (Prescribed Forms and Procedures) (No. 2) Regulations 2005 and shall come into force on 15th September 2005.

2.  In these Regulations:

“asylum claimant” means a person making a claim for asylum (within the meaning given in section 94(1) of the Immigration and Asylum Act 1999(2)) which claim either has not been determined or has been granted;

“dependant”, of a person, means—

(a)

the spouse or unmarried partner, or

(b)

a child under the age of eighteen,

of that person; and

“public enquiry office” means a public enquiry office of the Immigration and Nationality Directorate of the Home Office.

Prescribed Forms

3.—(1) Subject to paragraph (2) below, the form set out in Schedule 1 is hereby prescribed for an application for limited or indefinite leave to remain in the United Kingdom:

(a) as a business person,

(b) as a sole representative,

(c) as a retired person of independent means,

(d) as an investor, or

(e) as an innovator,

for the purposes of the immigration rules.

(2) Paragraph (1) does not apply to an application for limited or indefinite leave to remain in the United Kingdom as a business person where the application is made under the terms of a European Community Association Agreement.

4.  The form set out in Schedule 2 is hereby prescribed for an application for limited leave to remain in the United Kingdom:

(a) for work permit employment,

(b) as a highly skilled migrant,

(c) as a seasonal agricultural worker,

(d) for the purpose of employment under the Sectors-Based Scheme, or

(e) for Home Office approved training or work experience,

for the purposes of the immigration rules.

5.  The form set out in Schedule 3 is hereby prescribed for an application for limited leave to remain in the United Kingdom:

(a) as the spouse of a person present and settled in the United Kingdom, or

(b) as the unmarried partner of a person present and settled in the United Kingdom,

for the purposes of the immigration rules.

6.  The form set out in Schedule 4 is hereby prescribed for an application for limited leave to remain in the United Kingdom:

(a) as a student,

(b) as a student nurse,

(c) to re-sit an examination,

(d) to write up a thesis,

(e) as a student union sabbatical officer, or

(f) as a prospective student,

for the purposes of the immigration rules.

7.  The form set out in Schedule 5 is hereby prescribed for an application for limited leave to remain in the United Kingdom as a participant in the Science and Engineering Graduates Scheme for the purposes of the immigration rules.

8.  The form set out in Schedule 6 is hereby prescribed for an application for limited leave to remain in the United Kingdom as a participant in the Fresh Talent: Working in Scotland Scheme for the purposes of the immigration rules.

9.—(1) The form set out in Schedule 7 is hereby prescribed for an application for limited leave to remain in the United Kingdom:

(a) as a visitor,

(b) as a visitor seeking to undergo or continue private medical treatment,

(c) as a postgraduate doctor or dentist or a trainee general practitioner,

(d) as an au pair,

(e) as a teacher or language assistant under an approved exchange scheme,

(f) as a representative of an overseas newspaper, news agency or broadcasting organisation,

(g) as a private servant in a diplomatic household,

(h) as a domestic worker in a private household,

(i) as an overseas government employee,

(j) as a minister of religion, missionary or member of a religious order,

(k) as a member of the operational ground staff of an overseas-owned airline,

(l) as a person with United Kingdom ancestry,

(m) as a writer, composer or artist,

(n) as a member of the crew of a ship, aircraft, hovercraft, hydrofoil or international train service, or

(o) as the spouse or child of an armed forces member who is exempt from immigration control under section 8(4) of the Immigration Act 1971,

for the purposes of the immigration rules.

(2) Subject to paragraph (3) below, the form set out in Schedule 7 is hereby prescribed for an application for limited leave to remain in the United Kingdom for any other reason or purpose for which provision is made in the immigration rules but which is not covered by the forms prescribed in regulations 3 to 8 above.

(3) Paragraph (2) does not apply to an application for limited leave to remain in the United Kingdom where:

(a) the application is made under the terms of a European Community Association Agreement, or

(b) the basis on which the application is made is that the applicant is an asylum claimant or a dependant of an asylum claimant.

10.  The form set out in Schedule 8 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:

(a) as the spouse of a person present and settled in the United Kingdom, or

(b) as the unmarried partner of a person present and settled in the United Kingdom,

for the purposes of the immigration rules.

11.  The form set out in Schedule 9 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:

(a) as the child under the age of eighteen of a parent, parents or relative present and settled in the United Kingdom,

(b) as the adopted child under the age of eighteen of a parent or parents present and settled in the United Kingdom, or

(c) as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom,

for the purposes of the immigration rules.

12.—(1) The form set out in Schedule 10 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:

(a) as a work permit holder,

(b) as a highly skilled migrant,

(c) as a representative of an overseas newspaper, news agency or broadcasting organisation,

(d) as a private servant in a diplomatic household,

(e) as a domestic worker in a private household,

(f) as an overseas government employee,

(g) as a minister of religion, missionary or member of a religious order,

(h) as a member of the operational ground staff of an overseas-owned airline,

(i) as a person with United Kingdom ancestry,

(j) as a writer, composer or artist,

(k) on the basis of long residence in the United Kingdom,

(l) as a victim of domestic violence, or

(m) as a foreign or Commonwealth citizen discharged from HM Forces,

for the purposes of the immigration rules.

(2) Subject to paragraph (3) below, the form set out in Schedule 10 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom for any other reason or purpose for which provision is made in the immigration rules but which is not covered by the forms prescribed in regulations 10 or 11 above.

(3) Paragraph (2) does not apply to an application for indefinite leave to remain in the United Kingdom where:

(a) the application is made under the terms of a European Community Association Agreement,

(b) the basis on which the application is made is that the applicant is an asylum claimant or a dependant of an asylum claimant.

13.  An application for leave to remain in the United Kingdom which is made by a person (“the main applicant”) on a form prescribed in any of the regulations 3 to 12 above may include an application in respect of any person applying for leave to remain in the United Kingdom as a dependant of the main applicant, insofar as this is permitted by the immigration rules.

Prescribed procedures

14.—(1) The following procedures are hereby prescribed in relation to an application for which a form is prescribed in regulations 3 to 12 above:

(a) the form shall be signed and dated by the applicant, save that where the applicant is under the age of eighteen, the form may be signed and dated by the parent or legal guardian of the applicant on behalf of the applicant;

(b) the application shall be accompanied by such documents and photographs as specified in the form; and

(c) each part of the form shall be completed as specified in the form.

(2) The following procedures are hereby prescribed in relation to delivery of an application for which a form is prescribed:

(a) in relation to an application for which a form is prescribed in regulation 3 above, the application shall be sent by prepaid post or by courier to the Immigration and Nationality Directorate of the Home Office; it may not be submitted in person at a public enquiry office;

(b) in relation to an application for which a form is prescribed in regulation 4 above, the application shall be:

(i) sent by prepaid post or by courier to Work Permits (UK) at the Immigration and Nationality Directorate of the Home Office, or

(ii) submitted in person at the Croydon public enquiry office (but no other public enquiry office),

save that an application for which a form is prescribed in regulation 4(b) above (application for limited leave to remain in the United Kingdom as a highly skilled migrant) shall be sent by prepaid post or by courier to Work Permits (UK) at the Immigration and Nationality Directorate of the Home Office, and may not be submitted in person at a public enquiry office; and

(c) in relation to an application for which a form is prescribed in regulations 5 to 12 above, the application shall be:

(i) sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or

(ii) submitted in person at a public enquiry office.

15.—(1) A failure to comply with any of the requirements of regulation 14(1) to any extent will only invalidate an application if:

(a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,

(b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 28 days of the date on which the application is made, and

(c) the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State of the failure.

(2) For the purposes of this regulation, the date on which the application is made is:

(a) in the case of an application sent by post, the date of posting,

(b) in the case of an application submitted in person, the date on which the application is delivered to, and accepted by, a public enquiry office, and

(c) in the case of an application sent by courier, the date on which the application is delivered to Work Permits (UK) at the Immigration and Nationality Directorate of the Home Office.

Revocation

16.  The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2005(3) are hereby revoked.

Tony McNulty

Minister of State

Home Office

22nd August 2005

Regulation 3

SCHEDULE 1

Regulation 4

SCHEDULE 2

Regulation 5

SCHEDULE 3

Regulation 6

SCHEDULE 4

Regulation 7

SCHEDULE 5

Regulation 8

SCHEDULE 6

Regulation 9

SCHEDULE 7

Regulation 10

SCHEDULE 8

Regulation 11

SCHEDULE 9

Regulation 12

SCHEDULE 10

Explanatory Note

(This note is not part of the Regulations)

These Regulations prescribe forms which are to be used for applications for limited or indefinite leave to remain in the United Kingdom, and prescribe the procedures to be followed in relation to an application for which a form is prescribed. An application made on a prescribed form may include an application in respect of anyone applying for leave to remain in the United Kingdom as a dependant of the main applicant.

These Regulations revoke and replace the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2005 (the “2005 Regulations”). The forms prescribed by these Regulations are largely the same as the forms prescribed by the 2005 Regulations, although there are some minor changes to existing questions, and new questions have been added. These Regulations also prescribe a new application form for limited leave to remain in the United Kingdom as a participant in the Fresh Talent: Working in Scotland Scheme.

These Regulations make two changes to the procedure prescribed for applications. First, the procedures prescribed by regulation 14(1) now include a provision that each part of the form is to be completed as directed in the form. Secondly, regulation 15(1)(b) increases the period for notifying the applicant of any failure to comply with the procedures prescribed in regulation 14(1) from 21 to 28 days.

(1)

1971 c. 77. Section 31A was inserted by section 165 of the Immigration and Asylum Act 1999 (c. 33) and amended by section 121 of the Nationality, Immigration and Asylum Act 2002 (c. 41).

(2)

1999 c. 33.

(3)

S.I. 2005/771.