In a last-minute update on 29 July 2020, the Home Office has pivoted towards a return to business as usual on immigration policy. Some significant concessions remain available until at least 31 August 2020, however there are a number of potential pitfalls for employers and individuals to be aware of.

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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. It will therefore be important to ensure the latest version of the guidance is referred to, as we anticipate this will be updated again over the coming days. There may also be a lag in developments being confirmed on GOV.UK or other policy documents maintained by the Home Office, so we would recommend seeking 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 in this situation are allowed a further ‘grace period’ to 31 August 2020. As clarified in an update made on 30 July 2020, between 1 August and 31 August 2020, they continue to be lawfully in the UK on the same conditions as previously. This means they will remain entitled to work, study and rent accommodation if their conditions previously allowed this. They do not have to contact the Home Office if they are able to leave the UK by 31 August 2020.

The guidance stops short of confirming 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 does confirm 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. They must however either depart the UK or make an application for further leave by 31 August 2020.

Pitfalls to be aware of

It is possible that 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 the person and that they remain lawfully in the UK under the same conditions as previously.

‘Exceptional indemnity’ for those who are unable to depart the UK by 31 August 2020

Those who cannot depart the UK by 31 August 2020 can email the Coronavirus Immigration Team at CIH@homeoffice.gov.uk to request an ‘exceptional indemnity’ which is not leave but which is stated will protect a person from any action or adverse consequences after their leave has expired. A person who requests the indemnity will have to provide the Home Office with details of their circumstances, including stating and substantiating why they are not able to leave before 31 August 2020. Evidence of a flight booking or positive coronavirus test result may be required for example.

It is not explicitly stated in the guidance, but our view is that requests for an exceptional indemnity must be made by 31 August 2020.

It is not yet clear whether exceptional indemnities will all be granted to expire on one particular date, or if the date of expiration will depend on each person’s individual circumstances.

Pitfalls to be aware of

Absent any further policy clarification from the Home Office, it would appear that because a person who is granted the exceptional indemnity will have no leave, they will not have lawful immigration status during the period of the indemnity and any previous immigration conditions allowing them to right to work, study or rent accommodation in the UK will fall away after 31 August 2020.

This runs counter to the repeated assurances from Kevin Foster, Minister for Future Borders and Immigration, 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. It is entirely foreseeable that some individuals will be substantially disadvantaged and will possibly be rendered destitute or homeless while they remain in the UK without the ability to work or rent accommodation. We therefore expect that the Home Office will be urged to revise this policy stance.

If the policy is not revised, then 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 Rules. Subject to any clarification from the Home Office that the grace period is not in fact further leave to remain (see the section on switching 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 into another immigration category from within the UK

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, are allowed to switch into another immigration category from within the UK when they would usually need to apply for a fresh visa from abroad. A clarification to the guidance made on 30 July 2020 confirms this arrangement includes people whose leave is due to expire between 1 August and 31 August 2020.

Pitfalls to be aware of

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 if their conditions of stay will continue during the time this can be made or until it is finally determined.

Also, although the guidance no longer states that affected individuals will only be allowed to switch into a ‘long-term’ immigration category, it is not clear whether the Home Office still intends that switching will not be possible into the Tier 5 Youth Mobility Scheme, Tier 5 seasonal worker and overseas domestic worker categories, as well as Tier 4 where the individuals 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 into ‘long-term’ categories only, so further clarification from the Home Office is needed on this point.

It should be noted that 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 UK 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 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. We do not yet know the earliest date it may become possible to apply to switch into the categories of the new immigration system due to go live from 1 January next year, 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. Our view is that this is due to drafting error and we anticipate the Home Office will correct this over the coming days.

According to the guidance on family and private life applicants as it currently stands:

• family and private life applicants do not appear to benefit from the main switching concession if they wish to switch into a family or private life route from visitor or another category of leave granted for six months or less. The guidance still says that they will only be allowed to switch from these categories up to 31 July 2020.

• fiance(e)s 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/civil partner application by 31 July 2020. This is inconsistent however with the grace period, which entitles the person to remain lawfully in the UK 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

If you have any queries arising from these policy changes or require assistance with an application, please contact a member of our immigration team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer, Naomi Hanrahan-Soar, Stephen OFlaherty, Joanna Hunt,