POST UPDATED 1 MAY 2020
The Home Office has issued guidance about extending permission to be in the UK if your ability to stay on legally has been affected by the coronavirus outbreak.
This is welcome, and the guidance looks easy to follow. However, you should take care if you decide to use the new system, and make sure that you understand the effect it could have on your rights and leave to remain in the UK in future.
Later, an advice page was published on the Home Office website. As at 1 May 2020 the advice for individuals is set out here.
If your UK visa expired after 24 January, or is due to expire before 31 May 2020, you must submit an application for an extension using the online form.
In addition to the offer of an extension, the advice page also outlines a proposal to allow people to switch to some longer-term visas from inside the UK.
If you are considering using the Home office policy to extend your leave until 31 May 2020, you should consider the following:
It is not at all clear what legal basis the Home Office is using to grant leave to remain to people who contact them under the coronavirus policy.
The information on the Home Office website is thin: for example, we don’t know how they will treat someone whose visa expired after 24 January, but who might have been able to leave the UK before travel restrictions became more comprehensive.
At the time of writing there is no guidance about how caseworkers will make decisions about applications, or how long decisions might take to issue. There is no obvious appeal mechanism. There is no information about how a period of overstaying before applying under the scheme will be treated when you come to make a future application for leave to remain.
If you have existing leave to enter or remain in the UK (i.e. if your visa has not yet expired), then provided you make a new, valid application for leave to remain in the UK before that leave expires, you will normally be protected by section 3C of the Immigration Act 1971. Section 3C acts to extend your leave to remain during the decision-making process and any subsequent appeal.
There is no mechanism in the new coronavirus scheme for doing this. Contacting the Home Office by email, or using the coronavirus policy form, is not the same thing as making an application for leave to remain. If your leave is about to expire, and you do not get an extension under the scheme before it expires, you could be left as an overstayer in the interim.
“Overstaying” (staying in the UK after your leave to enter or remain expires) comes with a number of problems, related to the “hostile environment”. Overstayers are vulnerable in law to removal from the UK; they are prohibited from working or renting property, or opening a bank account. They are charged for secondary NHS treatment at a rate of 150%, often payable in advance.
If you still have valid leave to remain, there are mechanisms to apply to extend your leave in the UK within and outside the Immigration Rules. This involves completing an online application form and paying application fees and in some cases the Immigration Health Surcharge.
For example, you can apply to extend your stay as a visitor under Appendix V in some circumstances. In most cases you can only apply to take your stay up to a maximum of 6 months, but for medical visitors and academics the extension period could be longer.
If you are in the UK with a fiance visa, you can apply for an extension if there is a “good reason” why your marriage has not taken place within the 6-month period of your visa, and evidence that it will take place within the following 6 months. This may help those whose weddings have been cancelled due to restrictions on public ceremonies.
The “switching” provisions of the Home Office advice might also assist in these cases, although the detail of how the advice will be applied are still sketchy.
It is also possible to apply for leave to remain in the UK outside the Immigration Rules. Usually, the application should rely on human rights grounds or “compelling compassionate circumstances”.
Considering your position
The new Home Office advice is tempting, not least because it is free, and appears to involve only an email. This is in stark contrast to the cost of an application for leave to remain “outside the Immigration Rules”, which costs over £2,000 in fees.
If your visa has already expired, then contacting the Home Office could offer a way of being granted permission to remain in the UK in the short term.
However, if your leave has not expired, then you should very carefully consider whether a full application might protect you more effectively, even if it is more expensive.
Updated on 1 May 2020
Image by Rudy and Peter Skitterians from Pixabay