Examining the validity of Home Office decision to expand visas

With most countries closing down borders and select flights operating to repatriate foreign nationals to their home countries. There is a question at times for those individuals who are finding themselves stranded in country. For instance, India closed its border to international flights from 13th Mar 2020 to 15th Apr 2020. There has been a worldwide stir globally with respect to the international travel closing down due to the COVID 19 spread and it has become not just unwise but impossible to move or travel from one country to the other. With other countries following suit by closing borders, it would create a challenge for visa nationals to return home – raising concern for those whose visas were expiring. Also given that UK does not allow for in-country extension of visit visas – would the visa holders be violating conditions of their stay or even for those nationals who do not require a visit visa to enter the UK e.g. from the USA, given their inability to return to their home country would they be overstayers?

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On 17th Feb 2020 the Home announced, that the Chinese citizens in the UK would automatically have their visas extended without them having to take any action and as long as certain conditions are met with.

All the Chinese national who are in the UK and have been complying with the conditions of the issued visa prior to the coronavirus outbreak, the visa which is granted to them will be automatically extended to 31st Mar 2020 and this is applicable if their visa has an expiry date between 24th Jan 2020 and 30th Mar 2020.

An automatic extension would be granted if you are in the UK on a long-term standard visitor visa that lasts 2, 5 or 10 years and that if you have reached the maximum stay of 180 days between 24th Jan 2020 and 30th Mar 2020. It also confirms that you are not required to do anything to get the extension.

It is interesting to note that in a normal course visitors and students at the end of their course generally would not have any legal basis or requirement to extend their stay in the UK. It is equally pertinent that the people also do not overstay their visa as it comes under an immigration offence including working without a legal status. There could be cases where even the landlord would hand an eviction notice.

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It does raise the question as to why such an automatic extension not be afforded to the EU nationals on account of Brexit. Other than the current situation there hasn’t been an occasion in the past where such an automatic leave to remain would be granted voluntarily.

This action of the Home Office demonstrates that it can contemplate a declaratory system of leave to remain something that has been resisted for EU citizens living in the UK, as opposed to having each of them apply individually.

Perhaps one of the reason for such an omnibus order would be that whilst the Chinese and other country visa holders are already on Home Office database along with their immigration histories – the European nationals who are in the UK are not recorded anywhere.

This action also raises an important fact that is the Home Office empowered to automatically extend visas? In the present situation it would appear that the Home Office has used section 3(3)(a) of the Immigration Act 1971 to carry out the automatic extensions – but as a normal process such extensions are granted pursuant to an application being made, the section does not provide any specific procedural requirement.

The section 3 is to be read in line with the subsequent section 4 of the Immigration Act 1971 which states that immigration officers give or refuse leave to enter on the basis that this be exercised by notice in writing given to the person affected.

On a purely technical basis as there is no formal written notice and merely a declaration on the gov.uk site, it surely cannot qualify that an application has been made, as note on the gov.uk site has not legal effect.

Given the uncertainty and the ‘fog of war’ at the moment it may appear that all is good – however it would be advisable that the Home Office regularise this inconsistency especially given the penchant of the case workers to apply technicalities when deciding paperwork in the future.

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