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I am applying for a Graduate Visa in the UK. My Student Visa expires on the 30th of this month. I need to book an appointment at the UK Visa Application Services for the processing of my BRP.

I am aware that I can stay in the UK while waiting to hear about my Graduate Visa, even after my Student Visa expires. The specific wording on Gov.UK is:

As part of your application, you’ll need to prove your identity and provide your documents. Your application may take longer if you need an appointment to do this. You’ll find out if you need one when you start your application. Getting a decision Once you’ve applied online, proved your identity and provided your documents, you’ll usually get a decision on your visa within 8 weeks. You can stay in the UK while you wait for a decision.

I want to know when the "waiting for a decision" part starts. I have applied online, but the soonest appointment I can book to prove my identity is on February 1st, unless I travel to London (a significant expenditure...). Since I have started the application, I am hoping that I am able to stay in the UK and attend the February 1st appointment.

The alternative scenario is that I only gain the right to stay in the UK after the appointment, and would thus have to take the London appointment.

Any advice would be much appreciated! Thank you for your help.

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Important note: immigration legal advice is a regulated activity in the UK, and my answer does not constitute legal advice to your specific scenario. This answer is simply my opinion on the law as it applies generally to scenarios where a person has leave to remain and has applied to vary that leave. I am not saying whether I think this applies to your scenario, or what I think you should do. You may want to consider getting legal advice before making a decision.

With that out of the way, the applicable rule is found at Section 3C of the Immigration Act 1971:

(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 for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn, [...]

So, the question is, what exactly is meant by "the application for variation is made"? The answer to that is found at rule 34G of the Immigration Rules:

For the purposes of these rules, and subject to paragraph 34GB, the date on which an application is made is:

[...] (3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; [...]

It's very important however, that the application is valid. An invalid application will not trigger Section 3C, and the Section 3C right is lost if a subsequent valid application is re-submitted after the previous leave expires. A valid application must comply with all of the conditions set out at rule 34 of the Immigration Rules. This includes, among other things, using the correct form, completing all mandatory fields, paying the correct fee, and attending any biometrics appointment.

The Supreme Court in R (Mirza and others) v Secretary of State for the Home Department [2016] UKSC 63 dealt with this issue at paragraphs 36 - 37:

The obligation to pay the fee arises at the time of the application. There is no conceptual difficulty in providing that an application unaccompanied by a fee is invalid from the outset. The requirement to apply for biometric information arises only at a later stage, on receipt of a notice from the Secretary of State. Thus in Ms Ehsan’s case the application was made in December 2011, but it was not until the following February that she was required to make an appointment. Even then it was accepted that there might be a reasonable explanation justifying further delay. It is difficult to see any reason why a failure at that stage should be treated as retrospectively invalidating the application from the outset. [..] The natural reading, which is consistent with the statutory purpose, is to give power to invalidate the application as from the time of the decision, but not before.

In other words, a failure to comply with the requirements of a biometric appointment will invalidate your application on the date that the application is refused, not on the date that you make the application. Making an otherwise valid application, without having yet attended the biometric appointment, is sufficient to trigger Section 3C.

On a side note, are you aware of the possibility of completing your ID checks online?

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