Impending Prosecution - Immigration Application
On 31 December 2021, we received a decision where an application was allowed under the partner route. There was considerable delay in the processing of the application as our client has a criminal case pending case against him. Once he was cleared of the case, his application was allowed. Unfortunately, if a criminal case/investigation is pending against the applicant, then the Home Office is entitled not to decide the application until a decision is made n the criminal case. The court of Appeal in R (X and others) v Secretary of State for the Home Department  EWCA Civ 1480 has confirmed that there is an implied power under the Immigration Act 1971 to defer, or delay, taking a decision on an application for leave to remain. However, section 3C leave will extend the legal stay of the applicant while his/her application is pending a decision with the Home Office. Hence, it is important that the application is submitted before the expiry of the current visa even if there is an impending prosecution against the applicant.