CDS Mayfair Immigration Q&A for Visa Holders and Short-Term Residents in the UK

CORONAVIRUS (COVID-19): AN IMMIGRATION LAW Q&A

The UK immigration system has been particularly hard hit by the widespread disruption caused by COVID-19, and in particular, by the significant restrictions that have been placed on all forms of travel. Unfortunately, the UK immigration authorities have been slow to react to the challenges thrown at them by this pandemic, leaving those affected wondering where they stand in these unprecedented times.

Over the course of the last fortnight, the Home Office have begun to issue a series of COVID-19 related policies to tackle the issues faced by migrants and sponsors alike. To date however, these policies reveal a lack of joined-up thinking between the UK Government departments and in some cases, have raised more questions than they answer. 

With that in mind, the immigration team at CDS Mayfair have compiled a Q&A piece highlighting some of the most common issues we anticipate people experiencing in light of COVID-19. We at CDS Mayfair remain ready to help advise and assist you with any queries you may have in respect of your corporate or private immigration matters, including those related to COVID-19.

Please note, the content of this Q&A is up to date at the time of drafting (6 April 2020), but the situation remains fluid and further updates are anticipated. The questions and answers on this page are intended for general information only and must not be used as a substitute for legal advice. You should always take legal advice which is tailored to your specific needs and circumstances.

Visa Holders and Short-Term Residents in the UK

Q1: I am in the UK and my visa is due to expire shortly. I am not able to leave the UK because of travel restrictions imposed as a result of the coronavirus. What should I do?

A: The initial UK Government guidance published in mid-February 2020 applied only to Chinese citizens and residents of China who found themselves stuck in the UK as a result of COVID-19 related issues. This guidance provided Chinese nationals and residents with the possibility of being able to extend their visas until 31 March 2020.

On 24 March 2020 guidance was published on the government’s website for visa holders and short-term residents in the UK (last updated on 6 April 2020), which applies to all nationalities. This is supplemented by the Home Office’s factsheet, published on 2 April 2020. This guidance states as follows:

• if you are in the UK lawfully and your visa has expired or is due to expire between 24 January 2020 and 31 May 2020; and
• you cannot leave the UK because of travel restrictions or self-isolation as a result of the coronavirus, your visa will be extended, free of charge, with valid leave until 31 May 2020.

Feedback from UK Visas and Immigration (‘UKVI’) indicates that the term ‘self-isolation’ is intended to cover those who choose to self-isolate, not just those who are considered high-risk or are infected/have been in contact with those infected.

It is important to note visas are not being automatically extended. Instead, to benefit from this extension policy, you must first contact the UKVI’s dedicated Coronavirus Immigration Team (‘CIT’) to provide them with your personal details, your existing visa details and an explanation of why it is you are unable to return to your home country. On 6 April 2020 an online form became available to use to contact the CIT to apply for an extension of your visa. The CIT can also be reached by phone or by email. The CIT will then respond to confirm whether your visa has been extended and if so, to confirm that it has updated your Home Office records accordingly.

The UKVI guidance does not clarify which visa holders and short-term residents they intended to extend this policy to. We however envisage, subject to any future clarifications from the UKVI, that this encompasses visitors, short-term students, parents of a Tier 4 (Child) student and some other short-term visa categories.

The guidance makes clear that those whose visas are extended will not have any enforcement action taken against them during this period and that this extension will not be held against them in future applications.

Whilst this is reassuring news for many, it is worth regarding this extension policy with caution. This is because, at present, the UKVI have not confirmed that extending your visa under this policy will engage the protection from overstaying provided for by legislation (Section 3C of the Immigration Act 1971). The purpose of Section 3C is to provide an applicant with protection from becoming an overstayer when an in-time application is made to extend or vary their leave. Section 3C extends an applicant’s leave while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending. Until the UKVI confirm whether their COVID-19 extension policy is rooted to this protective piece of legislation, applicants relying on this policy are being left in a legal grey area, which remains vulnerable to further policy change at the whim of the UKVI.

It is thus our view, at the time of writing, that where applicants have an alternative route open to them, by making a valid, in-time in-country application to switch or extend their leave under the Immigration Rules (which does engage the protection from overstaying provided by Section 3C of the Immigration Act 1971), this may still be the best course of action.

Those without an alternative route should be mindful of the above risk and seek to make an application through the usual channels as soon as it is possible and practicable to do so if they want to remain in the UK. Otherwise, as Priti Patel has said, “Those who contact the Home Office for these visa extensions will be expected to return to their home countries as soon as possible once flight and border restrictions are lifted”.

Q2: I want to apply to switch into a different, long-term visa category. I would usually be required to apply from outside of the UK but I am unable to leave because of the travel restrictions. Can I apply from inside the UK instead?

A: If the requirement to apply from outside the UK (e.g. having prior entry clearance) is relevant to you (for example, if you are currently on a Visit Visa or a Tier 5 (Youth Mobility Scheme) Visa, the available guidance confirms that until 31 May 2020, the UKVI will waive the requirement for you to apply from outside the UK. Applicants may therefore apply for a long-term visa from inside the UK, but only if they can meet all of the other usual rules that apply to that visa category and pay the standard Home Office and Immigration Health Surcharge fees.

This concession is however of limited value at present – see Q3 below for an explanation as to why this is.

Q3: Is it possible to apply for a visa from inside the UK at the moment?

A: At the present time application forms can still be submitted online or by post and applicants can still pay all the attendant fees in the usual way, but the UKVI will not begin considering an application or provide a decision on an application for the time being. This is because the second stage of the application process has been disrupted by COVID-19.

The second stage of the application process requires applicants to book and attend an appointment at one of the UK Visa and Citizenship Application (‘UKVCAS’) centres across the UK, ordinarily within 45 days of submitting their application form and paying their fees. At these appointments, applicants have their ID scanned, their biometrics taken and submit their supporting documentation. At the present time, all UKVCAS centres are closed and are remaining closed until further notice. A link to their website can be found here and should be monitored for updates. Applicants therefore have no way of completing the application process at present. 

If you booked and were waiting to attend your appointment when your UKCVAS centre closed, the UKVI guidance states you will be contacted and told what to do. In our experience, this entails UKVI Customer Services contacting you via email with a request to review the UKVCAS appointment calendar to rebook. As a result of the present disruption caused by COVID-19, appointments are being re-scheduled for around 6 weeks after the application. The guidance also states individuals will not be regarded as overstayers or be subject to enforcement action if they are unable to attend an appointment due to COVID-19 restrictions.

This reassurance should also be coupled with a reminder to applicants that, in accordance with Immigration Rule 34G, it is the date you submitted your forms online and paid the relevant application fees that determines when you applied – not the date you attend your appointment. This is an important distinction to make, as it is only applications submitted in-time (before the expiry of your visa) that will extend an applicant’s leave whilst a decision is pending. The delay to attending an appointment should not therefore interfere with an applicant’s ability to reside lawfully in the UK, under the same terms of their current visa, whilst services have been disrupted.

Further guidance for applicants is required as a matter of urgency.

Note: given the ambiguous and transient nature of the above policies, it is advisable to seek clarity and advice on all COVID-19 related issues.

Contact Us

If you would like to discuss any of the issues raised, please contact our Immigration Team:

Elena Tsirlina | Solicitor, Head of Immigration and Asylum

[email protected] | +44 7891 857588

Chloe Spaven | Solicitor

[email protected] | +44 7462 116621