Legal News

2020 was a challenging year for all of us. During this time there have been constant changes in the immigration field many of which were covered in our previous articles. January 2021 brings further change and amendment to immigration guidance and rules as are set out below.

Covid-19 advice for UK visa applicants and temporary UK residents

This guidance was updated on 7 January 2021. If you are in the UK, the government expects you to take all reasonable steps to leave the UK or to apply for leave to remain. During this third lockdown all the visa and immigration services remain open as these are considered essential public services albeit with some restrictions. For us practitioners it has been extremely difficult to secure biometric appointments for all clients due to the limited appointments available, none of which are free.

If you intend to leave the UK but have not been able to do so and you have a visa or leave that expires between 1 December 2020 and 31 January 2021 you may request additional time to stay, known as ‘exceptional assurance’.

You can submit your request for an exceptional assurance by emailing cihassuranceteam@homeoffice.gov.uk

Bear in mind that there is not as much flexibility as experienced during the first lockdown. You must provide evidence that you cannot return and that it is beyond your control. During this time, once your application is submitted and you are waiting to hear from “exceptional assurance”, you are not considered to be an over-stayer and you can stay as per the conditions of your previous leave to remain in the UK.

If you are granted “exceptional assurance” it will act as a short-term protection against any adverse action or consequences after your leave has expired. If conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your exceptional assurance. Exceptional assurance does not grant you leave. It is a means to protect those who are unable to leave the UK due to COVID-19 restrictions and not to facilitate travel, other than to return home.

If you decide to stay in the UK you must submit a paid application for leave to remain and satisfy the requirement of immigration rules in category in which you are applying.

If your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. However, if you have not applied to regularise your stay or submitted a request for an exceptional assurance you must make arrangements to leave the UK.


If you work in healthcare and your visa expires between 1 October 2020 and 31 March 2021

You may be eligible for a free extension to your visa. If you are eligible, your dependants (partner and children under the age of 18) could also get their visas extended for a year.

You and your dependants will not have to pay the Immigration Health Surcharge.

If your visa is due to expire after 31 March 2021, or you are changing employer, you cannot extend your visa for free.

Further details are available on the government website.


Suitability and False Representations 22 December 2020

There is new guidance published on suitability and false representations, deception and no disclosure of relevant facts, which cover a refusal under paragraph 9.7.1 of part 9 of the Immigration Rules.

There is no definition of false representations and the guidance adopts the Supreme Court judgement of Mahad (Ethiopia) v SSHD which confirmed that you should use the natural and ordinary meaning of the words when making your decision.

The requirement for there to be deception before an application can be refused on grounds of false representations was discussed by the Court of Appeal in AA (Nigeria) [2010] EWCA Civ 773. That case concerned the interpretation of an equivalent provision, (previously in paragraph 322(1A) of the Immigration Rules). The court concluded that before an application can be refused on grounds of false representations:
“Dishonesty or deception is needed, albeit not necessarily that of the applicant...”

In July 2020 the Court of Appeal in Northern Ireland in the case of Layupan again confirmed AA Nigeria was correct:

“At the conclusion of his analysis, in [76], Rix LJ states equally unambiguously that dishonesty or deception on the part of some person is an essential prerequisite to mandatory refusal.”

There is a distinction between information that is false but where you are not satisfied there was an intention to deceive by the applicant and cases where you are satisfied there was deception by the applicant. If you can prove that the applicant has used deception, refusal of the application is mandatory. Permission extended under paragraph 3C of the Immigration Act 1971 may be cancelled under paragraph 9.7.4. if you can prove the applicant has used deception but cancellation is discretionary.

The burden of proof is on the applicant to show that they meet the requirements of the Rules. However, if you allege false representations, etc. the burden of proof is on the Home Office to show both:

• that the representations are not true


• there is dishonesty or deception

There can be mandatory refusal and discretionary refusals.

Mandatory refusals

You must refuse an application for entry clearance, permission to enter or permission to stay made on or after 1 December 2020 where you can prove that it is more likely than not the applicant used deception in the application.

Where you make a finding of deception you must make it clear that is your view. Stating that you have “doubts” or “concerns” is not sufficient. You must say that you believe there has been dishonesty or deception and explain why you have reached that view.

Discretionary refusals

You may refuse an application for entry clearance, permission to enter or permission to stay made on or after 1 December 2020 on the grounds that the applicant has made false representations, submitted false information or false documents, or failed to disclose relevant facts.

A person does not have a right of appeal or administrative review in respect of a cancellation decision made on or after 6 April 2015. In such cases either:

• their leave expires with immediate effect


• they are left with a period of permission following cancellation

You must make sure that the cancellation decision does not state that the person has a right of appeal or administrative review. If the cancellation decision is made at the same time as a refusal of a protection or human rights claim there may be a right of appeal against that decision.


Covid-19: Students, sponsors and migrants including short term students

The guidance for the above was updated in December 2020 and can be used from 22 December 2020. The guidance covers temporary concessions for:

• Student sponsors


• Students and child students (including Tier 4)


• Short-term student (English language) migrants (including short-term students)

The guidance yet again confirms that no one will have a negative outcome of their applications due to COVID-19 circumstances.

Changes made since the last publication include:

• Amended references to short-term study to reflect the move of the existing six month


• Short-term study routes to the visitor rules, and the opening of the new short-term student


• (English Language) route for English language study lasting 6-11 months, on 1 December.


• Removed concession allowing sponsors to continue to sponsor students when they have deferred for a period exceeding 60 days, since students who are unable to attend their studies in person can continue their studies by distance learning


• Extended the concession allowing students to apply for a course commencing in excess of 28 days after the expiry of the current period of permission to 31 March 2021


• Extended the date for the academic progression concession until 31 March 2021


• Added clarification that students who are exceeding their permitted working hours on the basis of being employed in a relevant NHS profession must continue to study to benefit
  from this concession


• Added clarification that the April 2021 date by which students must enter the UK to be eligible for the graduate route is only relevant to students completing courses in
  Summer 2021.


• Added further graduate route concession for students who commence study in January 2021 and for students who have been studying via distance learning.


• Removed information on replacement vignettes as the concession has expired and is not being renewed

The guidance further confirms that the Home Office will not take an action against the sponsors if students are absent from their studies due to COVID-19, however the sponsors must maintain records of students who are absent for these reasons, there is no reporting needed however if a student is absent or has withdrawn studies not related to COVID-19 this must be reported as usual. Distance learnings due to COVID-19 will continue whether in the UK for abroad. Students joining UK in 2021 can start their distance learning from abroad provided they are issued a valid CAS by their sponsors and commence their course prior to applying for a visa to enter the UK.


EU Settlement Scheme Applying from Outside of UK 31/12/2020

Now that that the UK has left EU, if you are an EU citizen and live outside of the UK you can apply from abroad under EU Settlement Scheme or through EU Exit ID check app to enter the UK provided that you meet the eligibility criteria. You must have a valid ID or passport with a biometric chip to use the app.

If you are joining your EU, EEA or Swiss citizen family member

You will need to prove your relationship and show that your EU, EEA or Swiss family member is either eligible for the EU Settlement Scheme or has already been granted settled or pre-settled status.

If you enter the UK as a visitor, you will not be able to apply to the EU Settlement Scheme from inside the UK. If you cannot scan your document, you can post them however if you cannot post or not permitted to post you must contact the EU settlement Resolution centre.

The Home Office has given further guidance on how to provide evidence of UK residence on 31 December 2020 if you cannot confirm this through an automated check of UK tax and benefit records. When you apply under EU settlement scheme you must show established residence in the UK, you need to provide one document dated in the last six months to be granted pre-settled status.

If you are applying as the family member of an EU, EEA or Swiss citizen, you will need to show they started living in the UK by 31 December 2020.

All the documents you submit as evidence, of your residence in the UK by 31 December 2020, must be dated and have your name on them.

Documents you cannot use as evidence
The documents you use should be from an official or impartial source. You cannot use:

• photos and videos


• letters or references from family and friends


• greeting cards, for example birthday cards


• postcards sent or received


• personal scrapbooks

If you do not have enough evidence in your own name, we’ll work with you to confirm when you’ve been resident in the UK based on all the evidence available.

Statement of Changes to Immigration Rules 31 December 2020

A short statement of changes to the Immigration Rules took effect on New Year’s Eve at 11 pm. some of the changes are highlighted below:

Immigration Rules Appendix T5 (temporary worker) International Agreement Worker

The International Agreement Worker route is for a person who wants to come to the UK to provide a service covered under international law, such as private servants in diplomatic households, employees of overseas governments and international organisations, or under the General Agreement on Trade in Services (GATS) or another agreement under which the UK has commitments. Within this route there are further subdivisions for:

• private servants in diplomatic households


• employees of an overseas government or international organisation


• contractual service suppliers


• independent professionals supplying services

The Brexit Trade agreement

The Brexit trade deal has resulted in a few adjustments to the rules on permitted activities for visitors (of all nationalities). Per the explanatory memo:

• business visitors will be able to conduct market research or analysis in the UK for their employment overseas;


• researchers will be able to conduct independent research for their employment overseas; and


• translators and/or interpreters will be able to translate and/or interpret in the UK as an employee of an enterprise overseas


• there is further amendments to the general grounds for refusal which now explicitly apply to family reunion applications.

Covid Visa Concession

On 11 January 2021, the Home Office published the Covid Visa Concession Scheme. The guidance applies to those who left the UK before 17 March 2020 when FCO travel guidance changed and who had, or are seeking to apply for, leave on an eligible route. Visitors are not eligible under this concession.

To be eligible, a person must meet the following eligibility requirements:

• they left the UK before 17 March 2020


• their leave expired and they were unable to return to the UK before its expiry due to COVID-19 travel restrictions


• they intend to return to the UK once confirmation they are eligible is given by UKVI, not less than 21 calendar days’ notice of their date of travel, unless either:
  
  
  1. they cannot travel because travel restrictions remain in place
  
  
  2. they choose not to travel due to a COVID-19 risk to themselves or their family, for example, showing symptoms, a requirement to self-isolate or being high-risk and unable to travel

Provided the eligibility criteria are met, authority for the passenger to travel without a visa will be processed by Border Force to allow travel under the concession scheme. After the Border Force Officer is satisfied the criteria are met (following the completion of identity and security checks) people will be granted leave outside of the Immigration Rules for three months with the same conditions as their previous grant of leave. People will not be able to leave and re-enter the UK under the same concession.

UKVI will communicate with all those who have contacted the CIH regarding their leave expiring while they were outside the UK and outline the next steps for returning to the UK to make their leave to remain application. It should also be noted that there is an exceptional circumstances section of the guidance which is available on government website.



Author Tamana Aziz is a director in the business immigration department at Duncan Lewis. Her specialist practice includes immigration applications under EU law, business immigration under the Points Based System (PBS), complex appeals (including deportation and country guidance cases) in Immigration Tribunals, the High Court, Court of Appeal and the Supreme Court.

Contact Tamana on 020 3114 1130 or at tamanaa@duncanlewis.com