In a last-minute update on 29 July 2020, the Home Office pivoted towards a return to business as usual regarding immigration policy. Some significant concessions remain available until at least 31 August 2020; however, there are a number of potential pitfalls of which employers and individuals should be aware.
The Home Office's Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents contains a range of policy changes, some of which require further urgent clarification or correction. Therefore, employers must ensure that they are referring to the latest version of the guidance, as it will likely be updated again shortly. There may also be a lag in developments being confirmed on GOV.UK or in other policy documents maintained by the Home Office, so employers should seek specific advice for affected individuals until the position is more settled.
Grace period for those whose leave was due to expire between 24 January 2020 and 31 August 2020
Individuals whose leave was due to expire between 24 January 2020 and 31 August 2020 are allowed a further grace period to 31 August 2020. As clarified on 30 July 2020, between 1 August 2020 and 31 August 2020, such individuals continue to be in the United Kingdom lawfully on the same conditions as before. Thus, they will remain entitled to work, study and rent accommodation if their conditions previously allowed this. They need not contact the Home Office if they can leave the United Kingdom by 31 August 2020.
The guidance stops short of confirming that the grace period is a further automatic extension of leave. Aside from the questionable legality of this, the change in messaging is important as it is a strong signal that there should be no expectation of further lawful stay beyond 31 August 2020.
The guidance confirms that no adverse consequences will apply to anyone with leave expiring between 24 January 2020 and 31 August 2020, even if they take no action to regularise their stay by contacting the Home Office within that time. However, they must either depart the United Kingdom or make an application for further leave by 31 August 2020.
Pitfalls
Some people may have their employment terminated or be unable to continue to rent accommodation if employers or landlords fail to recognise that the grace period applies to them and that they remain lawfully in the United Kingdom under the same conditions as before.
Exceptional indemnity for those who cannot depart United Kingdom by 31 August 2020
Individuals who cannot depart the United Kingdom by 31 August 2020 can email the Coronavirus Immigration Team at [email protected] to request an 'exceptional indemnity'. The exceptional indemnity is not leave, but it is stated that it will protect a person from any action or adverse consequences after their leave has expired. Individuals who request the indemnity must provide the Home Office with details of their circumstances, including stating and substantiating why they cannot leave before 31 August 2020. Evidence of a flight booking or a positive COVID-19 test result may be required, for example.
It is not explicitly stated in the guidance, but requests for an exceptional indemnity likely must be made by 31 August 2020.
It is unclear whether exceptional indemnities will all be granted to expire on one particular date or whether the date of expiration will depend on each person's individual circumstances.
Pitfalls
Absent any further policy clarification from the Home Office, it appears that because a person who is granted the exceptional indemnity will have no leave, they will not have lawful immigration status during the indemnity period and any previous immigration conditions allowing them the right to work, study or rent accommodation in the United Kingdom will disappear after 31 August 2020.
This runs counter to the repeated assurances from Minister for Future Borders and Immigration Kevin Foster and the general immigration policy position set out elsewhere in immigration guidance that migrants should not be disadvantaged as a result of circumstances beyond their control because of COVID-19. Some individuals will be substantially disadvantaged and will possibly be rendered destitute or homeless while they remain in the United Kingdom without the ability to work or rent accommodation. Therefore, the Home Office will likely be urged to revise this policy stance.
If the policy is not revised, it may be a better option for some people to make a fee-paid application for further leave to remain either within or outside the Immigration Rules. Subject to any clarification from the Home Office that the grace period is not further leave to remain (see below), filing an immigration application by 31 August 2020 will preserve the continuity of the person's lawful status and their conditions of stay while the application is under consideration and during any period where an appeal or administrative review could be made or is pending.
Switching to another immigration category from within United Kingdom
People whose leave has been extended under the COVID-19 concessions to 31 July 2020, including people who are entitled to rely on the grace period to 31 August 2020, can switch to another immigration category from within the United Kingdom when they would usually need to apply for a fresh visa from abroad. A clarification to the guidance made on 30 July 2020 confirms that this arrangement includes people whose leave is due to expire between 1 August 2020 and 31 August 2020.
Pitfalls
Although the guidance is clear that a person's immigration conditions will remain the same until their application is decided, it is not explicit as to whether those who apply within the grace period will be entitled to an administrative review or appeal if their application is refused and whether their conditions of stay will continue during the time that this can be made or until it is finally determined.
Further, although the guidance no longer states that affected individuals will be allowed to switch only to a long-term immigration category, it is unclear whether the Home Office still intends for it to be impossible to switch to the Tier 5 Youth Mobility Scheme, the Tier 5 seasonal worker and overseas domestic worker categories and Tier 4 where the individual is in receipt of a Chevening, Commonwealth or Marshall scholarship. Emails that have been sent to individual migrants still include a reference to being able to switch only to long-term categories, so further clarification from the Home Office is needed on this point.
Notably, the previous discretionary switching concession allowing those with leave expiring after 31 July 2020 to switch if they urgently need to make a new application and cannot leave the United Kingdom to apply from overseas has been removed. This does not mean that there is an absolute bar on making such applications, just that applicants would need to rely on the Home Office's general discretion to disapply a requirement of the Immigration Rules where this benefits the applicant. The appropriateness and timing of applications of this type should be assessed on a case-by-case basis. It is unknown when it may become possible to apply to switch to the categories of the new immigration system due to go live from 1 January 2021; however, this may offer a solution for some people.
Family and private life applicants
The COVID-19 concessions for family and private life applicants have not been updated. As a result, there are now contradictions within the guidance for these people. This is likely due to drafting errors and the Home Office will hopefully correct this shortly.
According to the guidance on family and private life applicants as it currently stands, the following apply:
- Family and private life applicants do not appear to benefit from the main switching concession if they wish to switch to a family or private life route from visitor or another category of leave granted for six months or less. The guidance still states that they will be allowed to switch from these categories only up to 31 July 2020.
- Fiances and fiancees and proposed civil partners will have to make a paid-for extension if their ceremony cannot take place in time for them to be able to make a spouse or civil partner application by 31 July 2020. However, this is inconsistent with the grace period, which entitles the person to remain in the United Kingdom lawfully with the same conditions of stay until 31 August 2020.
- The concessions on minimum income and adequate maintenance requirements for family route applicants have not been extended to cover a loss of income beyond 31 July 2020 due to the impact of the COVID-19 pandemic.
Kathryn Denyer, managing practice development lawyer, assisted in the preparation of this article.
