Updates, commentary, training and advice on immigration and asylum law
Coronavirus and the UK immigration system
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- Immigration tribunal hearings (UPDATED 6 September)
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This is where we keep tabs on changes to UK immigration laws, rules and procedures brought on by the coronavirus pandemic. We’ve been trying to keep this post continually up to date rather than covering new coronavirus developments as separate blog posts that may become rapidly out of date.
Material that has been added or updated from one version of this post to the next is labelled NEW or UPDATED. Any developments since the date of publication shown on the top right will not be reflected in the article.
For a while there, we were updating this page every couple of days, but things are starting to settle down and updates are accordingly less frequent. In between updates, you can keep an eye on the now weighty collections of coronavirus guidance from the Home Office and the Judicial Office. The main guidance page, Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents, is even now being updated frequently and with no reference to how the policy has evolved. To check what the guidance said on any given date, use the National Archives snapshots.
Free Movement members with a specific question not addressed here may wish to check the forum in case it has been asked and answered there.
Visa extensions and other concessions
People stuck in the UK
Some people who in the UK during the pandemic were unable to leave before their permission to be here expired because of travel restrictions. The government had been allowing people in this situation to easily extend their visas through a simplified online application process, but that concession has now been replaced with “exceptional assurance”, a promise of extra time to stay that falls short of proper leave to remain.
The first version of the coronavirus concession was introduced on 17 February 2020. It unilaterally conferred leave to remain until 31 March 2020 to Chinese citizens whose UK visas expired between 24 January and 30 March. It also allowed non-Chinese, non-EEA nationals in the UK who were normally resident in China to get an extension of leave by emailing in to request one.
The concession was updated to cover all nationalities on 24 March 2020. People in the UK on an expiring visa were able to have it extended to 31 May.
On 22 May 2020 the Home Office extended the concession to 31 July and later bolted on a “grace period” allowing people to stay until 31 August. As the main coronavirus guidance page summed up the position:
To allow time to make the necessary arrangements to leave the UK, if you have a visa or leave that was due to expire between the 24 January 2020 and 31 August 2020, you’ll be able to stay within the UK to 31 August 2020.
The Home Office also said that it didn’t need to be notified if someone needed to stay on during the grace period.
What about now that the grace period is over? It is still possible to request additional time to stay in individual cases. The Home Office initially called this “exceptional indemnity” but it is now “exceptional assurance”. Either way, it is a weaker form of concession than outright visa extensions:
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.
Exceptional assurance was initially available only to those with a visa expiring up to 31 October 2020, but the cut-off point was repeatedly pushed back as the virus crisis escalated again over the winter. It is available to people whose permission to be in the UK (including an existing exceptional assurance) expires before 30 September 2021. However, it is now restricted to people aiming to return to countries on the red or amber list. Those claiming to be unable to return to a green list country can only invoke exceptional assurance “in exceptional cases”, such as where that country has closed its borders entirely or has run out of quarantine hotel spaces (Australia springs to mind). Previous versions of the concession did not make this distinction.
People requesting exceptional indemnity/assurance need to email firstname.lastname@example.org with the subject line “Request for an assurance”. There was previously an online form, which has been discontinued.
People stuck outside the UK (UPDATED 6 September)
On 11 January 2021, the Home Office published a Covid Visa Concession Scheme. It was designed to help people who had permission to live in the UK but whose permission expired while they were stuck abroad due to coronavirus travel restrictions, leaving them unable to return. Provided they met the eligibility criteria in the guidance, such people were granted entry clearance valid for three months to allow them to travel back to the UK and apply properly to extend their stay.
But the scheme was aimed at people who left the UK before 17 March 2020 (the date the Foreign Office changed its travel advice, apparently).
Better late than never I suppose but the guidance only applies to those who left the UK before 17 March 2020. Doesn’t help anyone who has got stuck abroad since then. Illustrative of the Home Office’s hardening approach to those caught out by Covid https://t.co/LPhDLHA2qS— Joanna Hunt (@JoannaHunt12) January 11, 2021
Those who left the UK after 17 March 2020 would only be considered for this concession in “exceptional circumstances”. These included “serious illness or death of a close relative overseas” and “travel for the purpose of receiving medical treatment”. The concession was also “available until 21 June 2021”, with a brief extension to 19 July, so presumably applications under it will no longer be accepted.
A concession specifically for people with permission to be in the UK on the basis of private or family life also expired on 19 July 2021. For people who were “unable to travel back to the UK due to coronavirus travel restrictions” up to that date, “a short break of up to 6 months in continuous residence will be overlooked and you will face no future adverse immigration consequences as a result”.
For those worried about breaking their period of continuous residence in the UK for the purposes of indefinite leave to remain, Appendix Continuous Residence now states that absences caused by “travel disruption due to… pandemic” will not count towards the 180-day maximum. There is also guidance for people with EU pre-settled status worried about losing the right to upgrade to full settled status (a form of indefinite leave to remain).
Those who already had indefinite leave to remain but have now been outside the UK so long that it has lapsed will have to apply for a returning residents visa and pay the usual fee, but have most of it refunded. See the section of the main guidance page headed “If you’ve remained outside the UK for over 2 years and due to coronavirus travel restrictions your indefinite leave has lapsed”.
Certain NHS workers can get a one-year visa extension. Family members are included and there are no fees involved.
The Home Office announced on 31 March 2020 that around 2,800 doctors, nurses and paramedics with visas due to expire by 1 October 2020 would get a free one-year extension. A month later, the department said that it was broadening the scheme to cover other frontline workers, including midwives, radiographers, social workers and pharmacists.
The full list of eligible professions is on gov.uk:
- biological scientist
- dental practitioner
- health professional
- medical practitioner
- medical radiographer
- occupational therapist
- social worker
- speech and language therapist
- therapy professional
In November 2020, the scheme was extended to cover people with visas expiring on or before 31 March 2021. Unlike the first phase in which extensions were “automatic”, those with visas expiring after 1 October 2020 have to apply to have them extended for free.
A second extension of the scheme pushed the cut-off date back again, to 30 September 2021. There doesn’t seem to be any reason that eligible workers can’t get two of these free extensions in a row. So a nurse whose visa was originally due to expire on, say, 1 July 2020 could have got an extension to 1 July 2021 and could now apply for another extension taking them out to 1 July 2022. Any fees paid for a normal extension can be claimed back if it turns out the person was eligible for the free deal.
Family members of NHS workers who die from COVID-19 can get indefinite leave to remain for free. On 20 May 2020, this was broadened to cover “NHS support staff and social care workers” as well. This should be automatic, but those affected can contact UKVINHSTeam@homeoffice.gov.uk.
Spouses and minimum income
Another group of people under particular pressure during the crisis is families where one partner is on, or about to apply for, a spouse visa or visa extension. Loss of earnings as a result of the coronavirus-induced economic crash may mean that the family fall foul of the financial requirements.
Until 8 June 2020 there was no published concession for people in this situation. There is now a section of the guidance on Changes to the minimum income and adequate maintenance requirement. It says:
If you’ve experienced a loss of income due to coronavirus up to 31 October 2021, we will consider employment income for the period immediately before the loss of income, provided the minimum income requirement was met for at least 6 months immediately before the date the income was lost.
If your salary has reduced because you’re furloughed we will take account of your income as though you’re earning 100% of your salary.
If you’re self-employed, a loss of annual income due to coronavirus between 1 March 2020 and 31 October 2021 will usually be disregarded, along with the impact on employment income from the same period for future applications.
This concession initially applied only for loss of income up to 31 August 2020, but was extended repeatedly, most recently until the end of October 2021.
There is a bit more information on page 71 of the Appendix FM 1.7: financial requirement guidance.
The Home Office released a separate guidance document about coronavirus and student visas on 20 April 2020. It covers a number of temporary immigration concessions for those on student and short-term student visas which “will be withdrawn once the situation returns to normal”.
The section of the document aimed at individual students covers:
- Distance learning: now permitted. This is possible outside the UK for both new and existing students, provided that they will be coming to the UK to begin learning in person before 6 April 2022. Distance learning from within the UK is only allowed until 27 September 2021, after which point they must transition to at least a mix of in-person and distance learning. This “blended learning” can then continue until 6 April 2022. Students who do not intend to travel to the UK and will do the course entirely from abroad “do not require sponsorship”.
- Extending an existing visa: students who need to complete a course delayed by coronavirus can apply in-country for an extension to complete the course. If looking to extend to start a new course beginning before 27 September, officials can exercise discretion to overlook the normal requirement that the new course should begin no more than 28 days after the student’s permission expires. This concession was briefly deleted from the guidance but has since been reinstated.
- Police registration: students normally required to do this need to check if their particular police force is facilitating it. If not, they can register “once social distancing measures are lifted”.
- Working hours: students working for the NHS in various listed professions are exempt from the normal 20 hour a week cap “until 30 September”.
- Time limits: “discretion may be applied” if someone applies for an extension that would take them over the normal maximum period allowed for undergraduate or below degree-level study.
- The new Graduate route: those studying abroad by distance learning may still be eligible to switch into this route.
For short-term students, in-country switching onto a full student visa was “allowed on an exceptional basis” until 1 October 2020, provided the person arrived in the UK before 31 July. That has now been dropped from the latest version of the guidance, partly because of unrelated changes to the Short-term Student route.
This guidance also makes some concessions for sponsors, discussed below.
On 27 March 2020, the Home Office published a coronavirus guidance page for organisations that sponsor overseas workers or students under the Points Based System. It promised:
We will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to coronavirus.
Importantly, in certain circumstances the guidance allowed students to start their studies / employees to start working even if they were still waiting for a visa application to be decided.
These and other concessions continue in force, but the original guidance covering both employer and educational sponsors in one has now been split into two separate documents:
- Advice for UK sponsors of workers and temporary workers affected by coronavirus
- Advice for UK sponsors whose students are affected by coronavirus
The concessions for student sponsors specifically are addressed in more detail in another Home Office guidance document, Coronavirus (COVID-19): Tier 4 sponsors, migrants and short-term students. Among other things, it covers:
- Educational oversight: can be done remotely; “flexible approach to unavoidable delays in inspection”.
- Student absences: do not need to be reported if due to Covid-19. Records of such absences must however be kept.
- Distance learning: as above, permitted for new and existing students outside the UK so long as he or she will begin in-person learning by 6 April 2022. For students in the UK, permitted until 27 September 2021, after which point there must be at least some in-person learning.
- Blended learning: permitted for students in the UK until 6 April 2022.
- Attendance monitoring (now called “academic engagement”): no need to report students for missing expected contact points if it’s because of coronavirus or if they are doing distance learning. If the latter, “where possible sponsors should use expected online contact points” but there will be no repercussions if this isn’t technically possible.
- Basic compliance assessments: students who drop out because of coronavirus don’t count.
- Validity of CAS which have already been issued: a CAS issued between 24 January and 31 December 2020 is still valid. The Home Office will “take a pragmatic approach to considering applications to study courses with significantly different start dates to those stated on CAS or expired CAS”.
- Original documents: Appendix D record-keeping can be digital.
- English language: sponsors can “self-assess students as having a B1 level of English” if a test centre is unavailable, although the latest version of the guidance stresses that many have now reopened and students should take a test as normal where possible.
Start-up and Innovator visas
The guidance for the Start-up route includes a coronavirus concession:
Applicants who have already received the full 2 year period allowed in the route, but have been unable to develop their business sufficiently to switch into the Innovator route due to the impact of the Covid-19 pandemic can be exceptionally [granted] a further 12 months.
There is also a coronavirus section in the guidance for Start-up and Innovator endorsing bodies. Among other things, it advises those handing out endorsements to have “frank discussions” with would-be applicants, who may wish to think about “whether they are likely to be able to start developing their business in the UK under the current situation”.
The Home Office set up a coronavirus helpline early in the pandemic: email CIH@homeoffice.gov.uk or phone 0800 678 1767 (Monday to Friday, 9am to 5pm). The phone number is no longer being advertised on the Home Office website, but the email address is.
Travel to the UK
The rules on travel to the UK are different depending on what country you are travelling from, and potentially also on which nation within the UK you are travelling to. England, Scotland, Wales and Northern Ireland all have separate travel regulations (listed below), as well as different policies on internal covid restrictions once out of any quarantine. In practice, thankfully, the travel rules are pretty similar across the board but we’ll try to highlight any differences between the four nations.
Between 29 March and 17 May 2021 there was also a general ban on leaving the UK. That is no longer in place. Any government advice against leaving the country, while an important consideration, is not reflected in the law.
Quarantine and testing (UPDATED 6 September)
As a general rule, international travellers arriving in the UK must fill in a passenger locator form, have a negative coronavirus test taken no further out than three days before departure, and book another test to take no later than two days after arrival.
There are then different rules depending on where you are travelling from. For countries on the “green list”, there is now no need to quarantine unless the test comes back positive. At time of writing, the green lists were still quite short, with Malta the most recent addition.
For countries on the “amber list”, the rules are tighter. Unvaccinated international arrivals have to quarantine for ten days and take two home tests. People who have been fully vaccinated in the UK, US, EU and a few other places are exempt. To be fully vaccinated means having the second or final dose at least two weeks previously. In England, there is also a Test to Release scheme allowing some people to leave quarantine early if they take an additional test after five days and test negative.
The way the regulations work is that any country not on the green or red list is amber by default. At the moment, most countries are amber.
Finally there is the “red list”. There is an outright ban on travel from 60 (at time of writing) countries, notably including Pakistan, Bangladesh and Sri Lanka. Visit visas may not be issued until the country comes off the red list. British citizens, Irish citizens and people with “residence rights in the UK” can still travel but will have to quarantine in a hotel on arrival for ten days. The legal basis for this ban is and always has been unclear.
Who has “residence rights” does not appear to be defined anywhere on the government website pages, or in the regulations. But according to the Home Office Visas & Citizenship External Relations Team, it includes people with existing:
- holders of Indefinite Leave to Remain;
- holders of existing leave to enter or remain or a visa that grants such leave e.g. students, workers, etc (excluding visit visas);
- holders of EU Settlement Scheme (“EUSS”) leave;
- those who have rights of entry under the Withdrawal Agreements (including returning residents with a right of residence under the EEA Regulations and EEA frontier workers);
- family members of EEA nationals with rights under the Withdrawal Agreement.
Hotel quarantine for those who are allowed to travel from red list countries must be booked through a government-backed platform. It costs £2,285 for an individual, £1,430 for each additional adult or child over 12, and £325 for kids 5-12 (younger than that go free). This includes the cost of the two post-arrival tests, food, and transport to the hotel. By early July, over 114,000 people had reportedly passed through these quarantine hotels.
Countries may move between the green, amber and red lists at fairly short notice, typically five or six days. Green countries are flagged if at risk of going amber.
Journeys to the UK from within the Common Travel Area remain exempt from both the testing and quarantine requirements. (Northern Ireland is an exception to this, requiring lateral flow testing.) Also exempt are a number of specific occupations.
The main pieces of travel legislation in force in each of the four nations are:
- For England, SI 2021 No. 582.
- For Scotland, SI 2020 No. 169.
- For Wales, SI 2020 No. 574 (W. 132).
- For Northern Ireland, SI 2021 No. 99.
These are constantly being updated to reflect the latest policy tweaks.
Expiring entry clearance
Between 28 April and 31 December 2020, the Home Office offered a concession for people who had secured entry clearance to the UK but couldn’t use it before it expired after 30 days:
If your 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, you can request a replacement visa with revised validity dates free of charge until the end of this year. This does not apply to other types of visas.
This process will be in place until the end of 2020.
This concession now seems to have expired; the main guidance page no longer mentions it. However, entry clearance is now being issued for 90 days rather than 30 days as standard. Those unable to travel within the 90 days can apply to extend it at a cost of £154. The Home Office says “we strongly advise that you only… apply to replace an expired vignette, when you are confident you can travel to the UK”.
There is also a bit of guidance addressed to people who entered the UK with expired entry clearance, outside the 30 or 90 day window: see section headed If you are in the UK but your Entry Clearance was not activated due to COVID-19 restrictions.
For the policy for people who were already living in the UK but whose permission (leave to remain) expired while they were abroad, see the “people stuck outside the UK” section above.
Visa centres overseas
All UK visa application centres overseas were closed for some time during the first wave but are now open where local lockdown laws allow.
To check whether the visa application centre for a particular country is open, go to the website of either TLScontact (for Europe, Africa and the Middle East) or VFS Global (for the rest of the world) and select that country from the dropdown menu.
If the visa application centre in your country is still closed because of coronavirus, you can instead make an appointment in any other country that you’re allowed into. You can also apply for a visit visa from any visa application centre in the world (even if the one in your country is open, it appears). These concessions are due to end on 31 December 2021.
Applications from within the UK
All visa application centres within the UK closed in late March but gradually reopened over the course of 2020. The Home Office updated its guidance on 5 November 2020 to stress that they are staying that way despite the second wave: “our in-country immigration services (UK Visa and Citizenship Application Services, Service and Support Centres and English Language Test centres) will remain open”.
UKVCAS Service Points are open and will remain open throughout the lockdown period. The UK Government has confirmed that UKVCAS is an essential service and our staff are key workers.— UKVCAS (@ukvcas) November 2, 2020
That remains the case at time of writing: all UKVCAS centres are open. You can double check the status of application centres here.
Immigration tribunal hearings (UPDATED 6 September)
Emergency measures, including a shift to remote hearings where possible, have been extended to September 2021.
The Senior President of Tribunals first issued an emergency practice direction on 19 March 2020 which says:
Where it is reasonably practicable and in accordance with the overriding objective to hear the case remotely (that is in any way that is not face-to-face, but which complies with the definition of ‘hearing’ in the relevant Chamber’s procedure rules), it should be heard remotely.
The practice direction was originally due to expire in September 2020 but has since been extended twice, most recently to 18 September 2021. The latest version, taking into account amendments to the original, is here (pdf).
A First-tier Tribunal user guide, last updated in August 2021, goes into more detail on remote hearing arrangements. It says that the plan for April through October 2021 is to “continue listing hearings using remote hearing technology where it is possible and desirable and in the interests of justice to do so”. Appendix 1 to the user guide gives some guidance on how to use technology like BT MeetMe and Cloud Video Platform, as well as the rules for remote hearings (“everyone must treat remote hearings as seriously as if they were in a Tribunal Centre”).
The user guide was first published on 11 June 2020, along with a practice statement (No 2 of 2020) on arrangements during the Covid-19 pandemic, which includes instructions on lodging appeals online. That practice statement was replaced with a new version (No 1 of 2021) with effect from 26 April 2021, although the two documents are substantially the same.
There are three annexes to the practice statement:
- Directions on cases lodged using MyHMCTS
- Different directions on cases not lodged using MyHMCTS
- Directions for appellants with no lawyer
For the Upper Tribunal, the key document remains Presidential guidance note No 1 of 2020: Arrangements during the COVID-19 pandemic. It states that “If a hearing is necessary, the ‘default’ option during the pandemic is, therefore, that the hearing should be conducted remotely“. The document was last updated on 19 November to withdraw sections of the guidance that unlawfully pushed judges towards making decisions on the papers, without a hearing at all.
For appeals that need a face to face hearing, most hearing centres are open for a limited number of in-person hearings at each location. A YouTube video recorded at Hatton Cross shows off some of the new safety arrangements:
You can check the status of each hearing centre using the court and tribunal finder.
Registering an initial asylum claim must still be done in person, but no longer has to be at Lunar House in Croydon. The Home Office announced on 22 April 2020 that “the AIU in Croydon will continue to function as normal but will additionally be supported by limited operations in Glasgow, Belfast, Liverpool, Leeds, Solihull and Cardiff”.
Asylum seekers in Great Britain can make an appointment to register their asylum claim by calling 0300 123 4193. (In Northern Ireland, they are advised to turn up at Stockman House between 9am and 5pm.) Walking in without first making an appointment is discouraged but possible if the person “has nowhere to live” and needs to get into the asylum system to get accommodation.
The Home Office has published the Preliminary information questionnaire for asylum claims on its website.
For a while, those making further submissions with a view to having their case considered as a fresh claim were able to lodge them by post or email instead of turning up in Liverpool in person. This was in place between 18 March 2020 and 2 August 2021. The requirement for in-person submissions have since been reinstated.
Substantive asylum interviews were cancelled during the first wave from March 2020. They have since resumed in line with Home Office guidance published on 6 August. The document says that “there will be a phased resumption of interviewing which utilises remote interviewing via video conferencing, but we are aiming to resume face to face interviews as soon as we are able to do so”.
In the first phase, asylum applicants will be asked to attend in person but ushered into an interview room where they will talk to the caseworker and interpreter over video link. Legal representatives can come along if the room is “large enough to adhere to social distancing”. Otherwise, they can join remotely.
The guidance states that
Where it becomes clear… that the claimant is unable to participate fully in the interview process, you must suspend the interview and establish the reason why, seeking advice from a senior case worker or technical specialist as necessary.
A second phase will eventually see face-to-face interviews resume, while the final set of interviews to return to normal will be those involving children.
In June 2020, support payments to destitute asylum seekers increased from £37.75 a week to £39.60 a week. The Home Office has since decided to increase it by a further 3p a week, to the giddy heights of £39.63. Regulations to that effect came into force on 22 February 2021.
In addition, asylum seekers and refugees were temporarily allowed to stay in government accommodation for longer than usual. Philp wrote to the British Red Cross on 27 March 2020:
… I have taken the decision that, for the next three months, we will not be requiring people to leave our accommodation because their asylum claim or appeal has been finally decided (as would normally be the case). This decision will be reviewed ahead of the end of June 2020.
The Home Office has since resumed evictions of those granted refugee status, who should be able to apply for other sources of support. Some providers have been a little more flexible than usual if the person has no other accommodation lined up, but in general it is back to “business as usual”.
For those refused asylum and housed under section 4 of the Immigration and Asylum Act 1999, the restart of evictions was delayed by a series of legal challenges. That moratorium ended, at least in England, on 19 July 2021 (step 4 on the roadmap out of lockdown). The Home Office has said that since that date, it has been starting to “review and process cases for possible cessation from those failed asylum seekers who are currently in receipt of support under sections 95 and 4(2) of the Immigration and Asylum Act 1999”.
More on this from the Refugee Council.
The top line, as a senior official told the Home Affairs committee of MPs on 18 March 2020, is that:
there is no plan to have a wholesale systematic release from our immigration removal centres.
An urgent legal challenge by the charity Detention Action aimed at securing the release of all immigration detainees was rejected by the High Court on 25 March 2020. The court recorded various Home Office commitments to “reduce the number of persons in immigration detention”. These measures, plus grants of bail, reduced the number of detainees held under immigration powers from over 1,500 at the start of January to 700 in late April. The numbers have remained much lower than usual since then.
The High Court also accepted that “measures are being put in place to address the specific risks arising for those in closed communities such as detention centres”. Details are available in the judgment (released towards the end of April) and in a Detention Action press release.
As of late June 2020, there had been no confirmed cases of COVID-19 in the immigration detention estate, according to the Home Office. By mid-January 2021, outbreaks had been reported in Brook House, Harmondsworth and Napier barracks.
The tribunal has been looking favourably on individual bail applications. The Home Office has even tried to lean on judges to stem the flow of bail grants.
95%. Since going into lockdown on 23 March, we’ve had 55 hearings, 52 grants & 3 refusals. Shameful that the Home Office continues to waste resources & cause unnecessary suffering during a pandemic. Thanks to our staff & probono barristers for all their hard work. https://t.co/NcIBuasMpY— BID (@BIDdetention) April 30, 2020
Practitioners may wish to stress that removal is not imminent if flights are not available; that re-offending risk is low due to proactive police enforcement of movement restrictions; and the COVID-19 risk to detainees themselves. There is new statutory guidance, Detention considerations: COVID-19, on how coronavirus is factored into the existing Adults at Risk policy.
Visits to immigration removal centres were banned in late March 2020. In mid-July, that policy was adjusted to allow social visits in “exceptional circumstances” or where there are “compelling compassionate reasons”. Now, visits are allowed again subject to social distancing rules.
As with immigration detention, there was no general policy of suspending removals. Data released under the Freedom of Information Act shows that 285 people were removed between 1 April and 30 June 2020. Controversially, charter flights continued to operate.
Reporting as a condition of immigration bail was “paused” between 17 March and 20 July 2020. The Home Office website now says that people should “attend your appointment as usual unless you or someone you live with has any coronavirus (COVID-19) symptoms or you are self-isolating”. More on this from Migrants Organise.
Right to work checks (UPDATED 6 September)
Checks on the immigration status of employees to see if they have the legal right to work in the UK can be carried out remotely under a concession in place since 30 March 2020 and due to end on 6 April 2022.
The Home Office has made right to rent/work checks digital – so landlords and employers can use scanned docs to check if workers/tenants are allowed to work or rent in UK.— Bethan Staton (@bethanstaton) March 30, 2020
It’s still an offence to employ or let to people who don’t have legal immigration status. pic.twitter.com/pRij39i8Nc
The process for conducting a right to work check during the pandemic is as follows:
- ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
- arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents
- record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
- If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.
If the above is not possible, use the Home Office Employer Checking Service.
The policy originally said that once the emergency was over, employers would have to re-check people hired under the temporary procedure. The Home Office has since announced that this will no longer be required: “You do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive)”.
Normal checks for new workers were originally set to resume from 17 May 2021. The Home Office then changed its mind three times, pushing the date out to 21 June 2021, then 31 August 2021, and now 5 April 2022. The department also says that it hopes to offer digital status checks of all employees of any nationality in future, so that examination of physical documents (whether remotely or in person) will no longer be necessary.
Right to rent checks (UPDATED 6 September)
Much the same procedure applies for landlords checking the immigration status of new tenants, also ending on 5 April 2022:
- ask the tenant to submit a scanned copy or a photo of their original documents via email or using a mobile app.
- arrange a video call with the tenant – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
- record the date you made the check and mark it as “an adjusted check has been undertaken on [insert date] due to COVID-19”.
- if the tenant has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to rent service while doing a video call – the applicant must give you permission to view their details.
No retrospective checks on existing tenants assessed under the Covid concession between 30 March 2020 and 5 April 2022 will be required after all.
Regulations have been passed adding “Wuhan novel coronavirus (2019-nCoV)” to the list of diseases for which no charge is to be made for NHS treatment, regardless of the patient’s immigration status. This change is most significant for short term visitors and for migrants without lawful status, who normally have to pay for NHS care. Those lawfully resident are already entitled to use the NHS.
NHS England guidance says that “routine vaccinations” are exempt from charges, as well as diagnosis and treatment. The government has encouraged unauthorised migrants to come forward for vaccination, although NGOs have pointed out that many will be deterred by past rhetoric and the fact that there is no explicit ban on NHS data sharing with Immigration Enforcement.
No recourse to public funds
Migrants whose visa stipulates that they can have “no recourse to public funds” are in a difficult position. Without access to benefits to make up for loss of work, many face destitution.
Government guidance issued on 23 April 2020 says that there is some support available to migrants with no recourse to public funds, including:
- Coronavirus testing and treatment
- Deliveries of food and medicine if “shielding” as a particularly vulnerable person
- Statutory sick pay
- Contributory Employment and Support Allowance
- The Coronavirus Job Retention Scheme and Coronavirus Self-employment Income Support Scheme
The Home Office also says that it has launched a £1.5 million pilot fund to accommodate victims of domestic violence who have no resource to public funds.
But as the House of Commons Library says, “the Government hasn’t announced a blanket policy to change NRPF restrictions”. Those subject to the no recourse condition must still apply to have it lifted in order to access to the wider welfare system.
From an immigration perspective, that is not an application to be taken lightly:
Not only does removing NRPF punt you off a 5-year route to settlement and on to the 10-year route, but the Home Office has also made it clear that if you manage to change back, it will not count any of your previously accrued residence and your clock starts back at 0. https://t.co/QL7WTzlj6j— John Vassiliou (@john_vassiliou1) April 16, 2020
The High Court found on 7 May 2020 that aspects of the no recourse policy are unlawful. As a result, the Home Office updated its policy on applying to have the condition lifted where the person is only “at risk of becoming destitute”, as opposed to already destitute.
Asked about no recourse to public funds on 27 May 2020, the Prime Minister said that “clearly people who have worked hard for this country, who live and work here should have support of one kind or another… I will find out how many there are in that position and we will see what we can do to help”. It now appears that no help will be forthcoming.
EU Settlement Scheme
The Settlement Scheme also experienced significant disruption early in the pandemic, but the Home Secretary said in April 2020 that “we see no reason to extend the deadline when there’s still over a year to apply”. That deadline — 30 June 2021 — has now passed.
There is guidance for EU Settlement Scheme applicants affected by coronavirus. For discussion, see How do Covid-related absences from the UK affect EU pre-settled status?.
On 16 April 2020, the Home Office added the following message to around 20 gov.uk nationality application pages:
It is taking longer than usual to process applications because of coronavirus (COVID-19). This will not affect the decision.
The immigration minister said on 11 August 2020:
It is for each Local Authority to determine when they will be able to resume Citizenship Ceremonies in line with current government advice relating to social distancing and public safety.
A small trial of remote ‘virtual ceremonies’ has recently taken place successfully and further work is now being done to make these more widely available.
The process of becoming a British citizen is not legally complete until the person has attended a citizenship ceremony: section 42 of the British Nationality Act 1981.
The Office of the Immigration Services Commissioner postponed all exams from lockdown until September 2020, when they began again online. They will remain online until at least March 2022.
The OISC office itself remains closed. All correspondence should be by email rather than post.
There is a Covid Q&A for OISC advisers.
This article was originally published on 20 February 2020 and is being updated periodically.