What is cancellation of immigration permission (UK visa)
The term ‘cancellation’ of ‘permission to enter’ and ‘permission to stay’ were introduced on 1 December 2020 in the changes to the Immigration Rules which took effect on 1 December 2020. Previously the cancellation of immigration permit was called ‘curtailment’.
Both ‘cancellation’ and ‘curtailment’ mean the same thing, which is immigration permit is brought to an end by the Home Office due to specified circumstances. We talk more about those circumstances in our article below.
Key points to note for cancellation of permission
There are some key important points about the cancellation of permission to note at the start.
When cancelling immigration permission, Home Office usually shortens the permit to 60 days. Unless the visa expiry is before the 60 days.
The cancellation should be provided by Home Office to the visa holder in writing but this depends on your contact details being up to date. We talk more about this towards the end of our article.
In most cases there is no right of appeal and administrative review to challenge the cancellation. For that reason it is important to understand what can cause the cancellation and what one can do if their visa is cancelled by Home Office.
When your visa is cancelled by Home Office, you need to either depart the UK before the date specified by the Home Office OR to apply for a new visa before the date specified by Home Office. If you do not do any of those two, you will become an overstayer and your stay in the UK becomes illegal.
Cancellation: appeal and administrative review rights
It is important to note that an individual does not have a right of appeal or administrative review in respect of a cancellation decision made on or after 6 April 2015. This restriction does not apply where an individual comes under the EU Settlement Scheme or is an S2 Healthcare Visitor as these cohorts will have a right of appeal. For these cohorts, and additionally Service Providers from Switzerland, there will be a right to seek an administrative review where decisions are made at the border only.
Entry clearance and permission to stay: mandatory cancellation
Mandatory cancellation applies in the below listed situations.
The Secretary of State has personally directed that the individual be excluded from the UK.
The individual’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons.
The individual has:
(a) been convicted of a criminal offence for which they have received a custodial sentence of 12 months or more;
(b) is a persistent offender; or
(c) their offending has caused serious harm.
Entry clearance and permission: discretionary cancellation
Discretionary cancellation applies in the below listed situations.
The individual has committed an offence for which they have received a custodial sentence of less than 12 months imprisonment, or, a non-custodial sentence, or an out-of-court disposal.
Exclusion from asylum or humanitarian protection grounds: paragraph 339AA, 339AC, 339D or 339GB applies, or would apply but for the fact the individual has made a protection claim, or the protection claim was determined without reference to any matters described in those paragraphs.
The individual is, or has been, involved in a sham marriage or sham civil partnership.
Making of false representations, submission of false documents or false information and failure to disclose relevant facts in relation to, or in support of an application.
Use of deception in an application for permission to stay.
Failure to comply with conditions of permission to enter or stay.
The individual fails to comply with a reasonable requirement to: attend an interview, provide information or biometrics, to undergo a medical examination or provide a medical report.
The individual fails to produce a passport or other travel document which meets the requirements in paragraph 9.15.1 or 9.15.2.
It is undesirable to grant entry to the individual for medical reasons (as advised by a medical inspector).
The individual has committed a customs breach (whether or not a criminal prosecution is pursued).
There has been such a change in circumstance since the initial grant.
The individual’s purpose in seeking entry is different from the purpose specified in their entry clearance.
The individual ceases to meet the requirements of the rules under which entry clearance or permission was granted.
The individual’s entry clearance or permission was granted as a dependant of another person whose permission is, or has been, cancelled.
An individual’s sponsorship or endorsement has been withdrawn and they have entry clearance or permission on any one of the specified routes.
A student’s sponsorship has been withdrawn because the student does not have a knowledge of English equivalent to level B2 or above.
The Student or Child Student does not start their studies with their sponsor, or their course of study has ceased, or will cease before the end date recorded, or the start date for the course is delayed for more than 28 days, or they cease to study with their sponsor.
Worker does not start work or ceases their employment.
The individual’s sponsor does not have a sponsor licence, or their sponsor transfer the business for which the individual works, or at which they study, to another business or institution who fail to carry out one or more of the listed actions.
Change of employer.
Absence from employment.
Change of job or lower salary rate.
The endorsing body ceases to hold the status for the route in which they were endorsed (Global Talent, Start-up or Innovator).
Cancellation decisions: case considerations and use of discretion
With the exception of the mandatory cancellation grounds in Part 9 of the Immigration Rules outlined above, where cancellation must be with immediate effect, the remaining cancellation grounds under Part 9 of the Immigration Rules are discretionary. See: Part 9 mandatory and discretionary cancellation grounds for further information.
In cases where the reasons for cancellation are discretionary, Home Office must not automatically cancel an individual’s entry clearance or permission if there are reasons that suggest it may not be appropriate to do so. Home Office must establish the relevant facts and then carefully consider all an individual’s relevant circumstances and the proven facts of the case before you make a final decision. Caseworker must also explain their decision on whether exercised discretion in the decision letter, so an individual can see that you considered the circumstances of their case.
Exceptional or compassionate circumstances
Cancellation may still be appropriate where there are compassionate or exceptional circumstances. It may be appropriate to expect an individual to apply to regularise their stay in another category more appropriate to their circumstances. For example, where an individual is unable to leave the UK due to pregnancy, serious illness or a serious medical condition, they should make an application for permission to stay in another category or for leave outside the Immigration Rules to regularise their stay if, in view of their condition, it would be reasonable to expect them to be able to make such an application.
When Home Office caseworker make a decision to cancel the permission of an individual who is pregnant (or has just given birth), has a serious illness or a serious medical condition, they must consider whether should apply your discretion to allow them more than 60 days permission to stay in the UK. There must be exceptional compassionate circumstances for caseworker to apply discretion.
The nature of the pregnancy, serious illness or serious medical condition must be such that it prevents an individual from:
• applying for further permission (if required).
• leaving the UK before the expiry of the 60 days permission to stay in the UK.
Factors to include when you consider applying discretion:
• whether the pregnancy, serious illness medical condition mean that an individual is currently unfit to travel by air.
• whether there are any other methods of travel that an individual could realistically use.
• how soon an individual will be able to travel.
• in view of their circumstances, whether an individual could reasonably be expected to make an application for further permission to stay in a more appropriate immigration category.
Examples of exceptional compassionate circumstances could include:
• an individual who has been involved in a serious accident and is receiving critical care where making arrangements for their removal before they have recovered could result in risk to their life – an individual is too unwell to make an application for permission to stay in the UK
• an individual in a coma with a good prognosis of regaining consciousness and being able to travel or make a fresh application within the next few months
• where an individual is receiving treatment for a serious medical condition in the UK which prevents them from travelling or making a fresh application, and that treatment has a definitive end date in the next few months after which they could travel or make a fresh application.
You would not normally exercise discretion in the following examples:
• where an individual has kidney failure, needs dialysis and wants to stay in the UK on the basis of receiving treatment for this condition
• where an individual has a long-term disability which they had when they came to the UK
• an individual is pregnant and unable to travel due to the late stage of the pregnancy, but is otherwise well and could reasonably be expected to make an application for permission to stay in the UK in a different immigration category.
Deciding the date of expiry for cancelled permission
Home Office must cancel permission to enter or stay in the UK with immediate effect if:
• cancellation is mandatory under paragraphs 9.2.2, 9.3.2, 9.4.2 of the Immigration Rules where an individual has:
o been excluded from the UK o their presence in the UK is not conducive to the public good o they have been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months o they are a persistent offender
o they have committed a criminal offence or offences which caused serious harm.
It will normally be appropriate to leave an individual with 60 days permission to stay in the UK. This will allow them either to make an application for further permission to stay or make arrangements to leave the UK. For example:
• when a college decides not to run, or withdraws, a course.
• if a sponsor loses their licence and an individual was not knowingly involved in the actions that resulted in their sponsor losing their licence.
• in breakdown of relationship cases where there is no evidence that the settled spouse has been the victim of domestic violence.
It follows that if you intend to cancel permission to 60 days Home Office must only do so if an individual will have more than 60 days permission remaining on the date that they will receive the decision.
The same principle applies if Home Office caseworker is considering cancelling permission so that an individual has more than 60 days permission remaining. For example, if deciding to cancel permission to 90 days an individual must have more than 90 days permission remaining on the date that they will receive the decision.
Ceasing to meet rules requirements: relationship breakdown
In non-EUSS cases Home Office must consider cancelling an individual’s permission where it was granted on the basis of their relationship with a settled person under paragraph 9.23.1 of the Immigration Rules.
When spouse or partner informs the Home Office of a breakdown A UK settled person contacts the Home Office with information that their spouse or partner, who arrived 4 months ago with a spouse visa, has left them. As the marriage or partnership no longer exists, and the individual has outstanding permission to stay, Home Office must consider referring the case for cancellation.
When the individual informs the Home Office of a breakdown An individual who has remaining permission to stay in the UK as a spouse or partner, contacts the Home Office with information that their relationship with their settled spouse or partner has ended. As the marriage or partnership no longer exists, and the individual has outstanding permission, you must consider referring it for cancellation.
Cancelling the permission of dependants
When Home Office consider cancelling a main applicant’s entry clearance or permission to enter or stay in the UK, caseworker must also consider cancelling the permission of any dependants who were granted permission in line with the main applicant, under section 5, paragraph 9.24.1 of the Immigration Rules.
Service of a decision to cancel
Under section 4 of the Immigration Act 1971, Home Office must serve the decision to vary permission on the individual in writing. There is no right of appeal against any cancellation decision made on or after 6 April 2015, with the exception of curtailment decisions made under Appendix EU, Appendix EU (Family Permit) and cancellation decisions made under Appendix S2 Healthcare Visitor. See: cancellation and curtailment grounds: appendices and annexes for further information.
For non-appealable decisions the notice cancelling permission may be:
• given by hand
• sent by fax
• sent by postal service to a postal address that an individual or the representative provided for correspondence
• sent electronically to an email address that an individual or the representative provided for correspondence
• sent by document exchange to a document exchange number or address
• sent by courier
Appealable decisions For appealable decisions the notice cancelling permission may be:
• given by hand
• sent by fax
• sent by postal service in which delivery or receipt is recorded to: o an address provided for correspondence by the person or their representative.
Where no address for correspondence has been provided by the person, Home Office may send the notice:
• by postal service in which delivery or receipt is recorded to either the last known or usual place of either: o abode, or place of business of the individual o place of business of the individual’s representative.
The Home Office policy preference is to serve the decision to:
• a UK postal address, including to legal representatives if still acting for the individual, where this is possible, and evidence indicates the individual is in the UK.
• for non-appealable decisions only, to an email address where this is possible, particularly where there is information or evidence which indicates the individual is outside the UK.