A Pending Human Rights Application Can Be Varied
The legal position under paragraphs 34BB and 34GB, explained with case law
Key point: A person with an undecided human rights application may be able to vary it by making a later valid application under another immigration route.
Changing route while an application is pending
Immigration circumstances do not stand still. A person may have made an application relying on Article 8, family life or private life, but later become eligible under a more appropriate route – perhaps as a spouse, parent, Skilled Worker or under another Appendix to the Immigration Rules. Paragraph 34BB provides a mechanism by which a later valid application can vary the earlier application before it is decided.
Subject to the special position of applications under Appendix EU, paragraph 34BB(1) provides that where an application for entry clearance or permission to stay remains outstanding, a further application will be treated as an application to vary it. Only the most recent application is considered. The variation must itself be valid and will be decided under the Rules in force when the variation is made: paragraphs 34BB(2) and (3).
The special protection for a pending human rights claim
Paragraph 34BB(7) is crucial. If a human rights claim formed part of the earlier application and the varied application is granted, the outstanding human rights claim is treated as withdrawn. If the varied application is refused, the human rights claim remains outstanding, provided it has not already been decided, and must later be considered at a time determined by the Secretary of State.
This does not guarantee success, preserve every possible appeal right, or mean that an applicant can switch into any route from within the UK. It does, however, prevent an undecided human rights claim from automatically disappearing merely because the later variation is refused.
CASE-LAW ANALYSIS
The reported authorities below do not replace the wording of paragraph 34BB(7), but they explain how the courts approach variation, validity and section 3C leave. Together, they show why an applicant must get the form, fee, biometrics and timing right.
1. R (Bajracharya) v Secretary of State for the Home Department [2019] UKUT 417 (IAC)
This is the most directly relevant reported authority on the relationship between an original application and a later variation. Mr Bajracharya had an outstanding application and later sought to vary it. The later application encountered a biometric-validity problem. The Home Office treated the position as though the failure of the variation also disposed of the original application.
The Upper Tribunal rejected that approach. Applying the ordinary meaning of the Rules then in force, it held that an application and a variation are legally distinct for validity purposes. An invalid variation did not, without more, invalidate the earlier outstanding application. The original application therefore remained to be decided.
Practical relevance: If a purported variation is invalid, the correct question is not simply whether the new route fails. It is also necessary to establish whether the original human rights application remains outstanding. Paragraph 34BB and the current validation provisions must be applied to the facts and the current Rules, but Bajracharya remains a powerful warning against collapsing the two questions.
2. R (Mirza, Iqbal and Ehsan) v Secretary of State for the Home Department [2016] UKSC 63
The conjoined appeals in Mirza concerned applications affected by failures relating to fees and biometrics, and whether section 3C of the Immigration Act 1971 extended the applicants’ leave. The Supreme Court examined the distinction between an application which is invalid from the outset and one which begins as valid but may later become invalid through non-compliance with a procedural requirement.
The central lesson is that section 3C protection depends upon a valid in-time application. A submission which never satisfies the validity requirements does not ordinarily generate section 3C leave. Where validity depends on a later procedural step, the precise wording of the relevant scheme and the timing of any failure are critical.
Practical relevance: A proposed variation should never be filed on the assumption that the original section 3C position will automatically cure defects in the later application. The adviser must ensure that the variation is made on the correct form, with the correct fee and Immigration Health Surcharge, and that every biometric or identity requirement is met within time.
3. R (Afzal) v Secretary of State for the Home Department; R (Iyieke) v Secretary of State for the Home Department [2023] UKSC 46
Afzal and Iyieke concerned the interaction between invalid applications, section 3C leave and the former ten-year long-residence rule. In Afzal, the application was rejected as invalid because a required fee had not been paid. The later grant of leave did not retrospectively convert the intervening period into lawful residence.
The Supreme Court confirmed that an invalid application could fail to extend leave under section 3C and could therefore interrupt continuous lawful residence. The case shows that an error made during one application may have consequences years later when settlement is sought.
Practical relevance: Where a human rights application is being varied into a route leading to settlement, validity is not merely an administrative issue. A defective variation may affect lawful residence, work rights, access to services and future settlement calculations.
4. R (Basir) v Secretary of State for the Home Department [2018] EWCA Civ 2612
Basir concerned an attempt to make a further application while section 3C leave continued following an earlier application. The Court of Appeal emphasised the statutory policy against multiple overlapping applications and held that an application made contrary to section 3C(4) could not itself extend leave merely because the Home Office had purported to consider it.
Practical relevance: The proper route while the first application remains undecided is variation, not the creation of parallel live applications. Once the first application has been decided and section 3C continues only because an appeal or administrative review is pending, the statutory restrictions become materially different.
What the authorities establish when read together
The authorities support four connected propositions. First, a valid later application made before decision is ordinarily treated as a variation rather than a parallel application. Secondly, the validity of the variation must be established independently. Thirdly, an invalid variation may leave the original application outstanding, depending on the applicable Rules and facts. Fourthly, a failure of validity may prevent or terminate section 3C protection and may damage future long-residence or settlement claims.
Which application date applies?
Paragraph 34GB generally deems the date of a valid variation to be the date of the original application. That protects the application date for relevant purposes. It does not freeze the substantive Immigration Rules: paragraph 34BB(3) separately requires the varied application to be decided under the Rules in force on the date of variation. The deemed application date and the applicable version of the Rules therefore perform different functions.
Section 3C leave and the timing trap
Where the original application was made in time and was valid, section 3C of the Immigration Act 1971 may extend the applicant’s existing leave while the application remains undecided. A valid variation made during that period normally forms part of the same continuing application. By contrast, once the application has been decided, a later application cannot vary it. Different restrictions also apply where section 3C continues only because an appeal or administrative review is pending. Under paragraph 34KC, a new permission-to-stay application made at that stage may be void unless it is a human rights or protection claim or falls within another stated exception.
Practical consequences before varying
Before a later application is submitted, the applicant should establish that the first application remains undecided; confirm the new route permits an in-country application; satisfy every validity requirement, including the correct form, fee, Immigration Health Surcharge and biometric process; review the effect on dependants; and consider the consequences for section 3C leave, appeal rights, refunds and the evidence supporting the outstanding human rights claim.
BWF Solicitors can assess whether variation is available and advise on the safest route before a further application is submitted.
Official sources
Immigration Rules, Part 1 – paragraphs 34BB and 34GB
Home Office guidance: validation, variation, voiding and withdrawal of applications
Bajracharya [2019] UKUT 417 (IAC)
Afzal and Iyieke [2023] UKSC 46
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About the writer:
Bennard Owusu is an accredited member of the Law Society Family Law Accreditation
Scheme and a member of the Ghana Bar Association. Family Law Accreditation is a
recognised quality standard for family law practitioners in the U.K.
