Clarity needed from Home Office in response to coronavirus pandemic

Fri, 24 Apr 2020

On 21 April 2020, the Immigration Law Practitioners’ Association (ILPA) and Colin Yeo, the barrister who edits the Free Movement blog, gave evidence to the Home Affairs Committee in parliament on the Home Office’s response to the coronavirus.

The burden of their evidence was that communications are unclear and poor and that the Home Office has not thought through the longer-term consequences of its response to the pandemic.

Large numbers of people in the UK on a visa are here on a temporary basis. 

First of all, there are visitors. They came as tourists or to see family, they have no permission to work or entitlement to access public funds.  While, self-sufficient when they arrived, they may be in stuck in the UK and running out of funds.

Then there are people on time limited visas, as workers or as family members of British citizens and the settled.  There are conditions on their leave, varying with the category in which they have leave.  Some visas, such as those for young people on the “youth mobility scheme” are one-off and time limited. Others carry the prospects of settlement in the UK if the conditions for granting an extension are met.  Conditions may include being in employment in a particular job, and earning a particular amount.  EU nationals and their family members who have “pre-settled status” may be in a similar position, although many will have rights because they are working, studying, or self-sufficient.

Meanwhile the “hostile environment”, which the government now calls the “compliant environment” penalises those who do not meet the conditions of their leave and those who overstay, failing to apply for their leave to be extended before it expires.

Some persons will not qualify for an extension of leave, because of the type of their visa or because they are no longer working, or not earning what they were before or simply because the circumstances of lockdown mean that they cannot gather the evidence to demonstrate that they qualify.  In other cases, loss of earnings will prejudice a future application because they cannot pay the fees.

The Immigration Law Practitioners Association argued that the Home Office should be making a statutory instrument automatically extending leave until, in the first instance, September.  They cited an example from 2016, a statutory instrument extending leave for trafficked persons.

Instead, the lawyers complained, the Home Office has posted one off notices on its website, removing and replacing these without version control.  One appeared to suggest that everyone who worked for the NHS would be given an extension of leave for one year, but a subsequent announcement suggested that it would only apply to those working for the NHS on a “Tier 2” skilled worker visa. Following the Home Affairs Committee evidence session, the Home Office has informed ILPA that it is not limited to Tier 2 workers.

It is unclear how those granted leave can evidence this, whether now to landlords or banks, or in future, including to the Home Office itself but has advised workers to get in touch with their NHS Trust’s human resources department, which suggests a process that is less than fully automatic. Mr Yeo even doubted whether the Home Office could extend leave other than by statutory instrument or individual grant.  I incline to think that this is a worry too far, as it would be possible to regularise the situation retrospectively if such a technical problem did arise, but it illustrates the extent to which the government’s actions are confusing to lawyers, let alone comprehensible to members of the public.

As of 22 April 2020, the Home Office information for those on visas could be found at: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents#inside-UK

This page links to information for those working for the NHS: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents#if-youre-working-for-the-nhs

It also links to a form where people can advise the Home Office of their situation: https://gov.smartwebportal.co.uk/homeoffice/public/webform.asp?id=199&id2=5C97E7

Actions now many have consequences for the future.  A person on a visa, for example a spouse, with a condition that they do not have recourse to public funds, can apply for that condition to be lifted, but the consequence of this will be that they will no longer qualify for settlement after five years, but will have to wait for 10, with two additional, expensive, visa renewals thrown into the mix.

The lawyers expressed concern that those who called the dedicated coronavirus helpline, 0800 678 1767, did not always get definitive answers to their questions.

What can you do?

  • Keep the evidence: if you rely on a government webpage, print it out and date it. Check back to see if information has been updated before you rely on it.
  • If you telephone the Home Office coronavirus helpline, keep an accurate note of the conversation, with the date and time of the call and keep the name of the person to whom you spoke.
  • Keep evidence personal to you: medical advice not to travel, cancellation or lack of flights to the destination for which you would have left the UK if you could have done.
  • Check in with your employer, trade union, professional body or university: particularly large employers, or colleges will have a number of people in the same position and may spot contradictory or confusing information before an individual would. If you are concerned that a proposal, for example to cut your hours and pay, may mean that you do not meet the conditions of your visa, raise this.
  • Treat information on social media with the same scepticism as you would information about the virus: check the source and triangulate it.
  • Tempting as it may be to try take advantage of a promise rather than embark on a costly visa renewal, it is a good idea to take legal advice first from a reputable lawyer.
  • Be wary of those who give categorical answers: as the evidence to the Home Affairs Committee demonstrated, organisations such as ILPA, which can gather information from lots of lawyers and raise questions with the government do not have categorical information. Advice can only ever be given on examination of your personal circumstances. There may be a subtle but important difference between you and the person whose situation appears to be the same as yours.

Alison Harvey is a barrister at No5 Barristers’ Chambers practising in immigration and public law.  She is a former General Secretary and Legal Director of the Immigration Law Practitioners’ Association, for whom she continues to provide training.

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