Guidance on “exceptional assurance” Covid policy given by Court of Appeal

The Court of Appeal has given some guidance on the application of the exceptional assurance policy put in place during the pandemic and has concluded that it could not be relied on by the appellant, notwithstanding the fact that the Home Office had issued him with a letter granting a two week period of “short-term assurance”. The case is Seerangan v Secretary of State for the Home Department [2025] EWCA Civ 354.

Background

The appellant is an Indian national who arrived in the UK on 3 October 2020 on a student visa valid until 30 January 2022. On 14 November 2022 he asked for an “exceptional assurance” under the Home Office’s Coronavirus Exceptional Assurance policy. On 16 November 2022 the Home Office wrote to him saying he did not qualify, but would be given a “short-term assurance” until 30 November 2022.

On 29 November 2022 the appellant applied for leave to remain as a skilled worker. That application was refused on 19 December 2022 because he was an overstayer. That refusal was maintained following an administrative review. The appellant brought a judicial review against the decision, submitting that the effect of the assurance he had been given was that he should not have been treated as an overstayer. His judicial review was dismissed on 16 April 2024 and he appealed to the Court of Appeal.

Court of Appeal

Paragraph 10 of the judgment sets out the details of the exceptional assurance scheme at the date the appellant made his request and the court set out its interpretation of the policy at paragraphs 11 to 23. The court summarised the policy as follows:

it makes a fundamental distinction between what I will call regularised and unregularised overstaying. Regularised overstayers are those who had applied for an EA by the time that their visa first expired and renewed it if necessary thereafter; and unregularised overstayers are those who did not. The Policy makes it clear that both remain overstayers within the meaning of the Rules (see para. 16 above), but where the overstaying has been regularised it provides for both (a) protection against the usual consequences of overstaying (section [A]) and (b) a disregard of the period of overstaying for the purpose of an application for leave to remain made during the currency of the EA (section [B]). Where it has not been regularised the overstayer has no protection

It was argued on behalf of the appellant that the protections of the exceptional assurance policy extended to all those whose leave had expired since the beginning of the pandemic and who had been unable to return home, whether or not they had obtained exceptional assurance when their leave first expired. The Court of Appeal rejected this submission, stating that it was inconsistent with the explicit terms of the policy which make clear that exceptional assurance will only be granted to those who at the time of their request either still had leave, or held an earlier grant of exceptional assurance.

The court also said that there was “nothing surprising” about this being the position and that:

Allowing an overstayer who had not regularised their position at the start to emerge months or years later and be treated as if they had never overstayed would render that process futile. It would also create real practical difficulties. Even if the late-applying overstayer claimed that throughout the intervening period they had been unable to return home, the exercise involved in UKVI checking historic information of that kind would be very different from a simple check of the position as at the date of each request. 

The court held that in this case the appellant was an unregularised overstayer not entitled to an exceptional assurance under the policy.

The appellant also argued that the “short-term assurance” given in the letter from the Home Office gave rise to a legitimate expectation, seeking to rely on the Supreme Court’s decision in Re Finucane [2019] UKSC 7. In light of that, the court considered whether the letter “contains a clear and unambiguous undertaking that the Appellant would not be treated as an overstayer for the purpose of any application for leave to remain which he made during the currency of the assurance given in it.”

Evidence from the Home Office was that “exceptional assurance” was given for ten weeks where there were travel restrictions in place preventing a person’s return, otherwise they would be given a “short-term assurances” of two weeks to allow them to make arrangements to leave the UK. The latter provision was not set out in the published guidance.

The court referred to the letter sent by the appellant’s solicitors making the request for exceptional assurance and said that the letter was based on a misunderstanding of the exceptional assurance policy, as they appeared to believe that it “was some kind of broad compassionate policy for the assistance of any overstayer currently in the UK who had at some point in the past been unable to return home because of the pandemic to obtain an EA and who now wanted to apply for leave to remain”.

The court described the request as “hopeless”, pointing to the fact that the letter did not say that the appellant was unable to return to India at that time (because there were no restrictions at the time). Further, the letter did not refer to the appellant either having leave to remain or the benefit of an existing exceptional assurance, either of which being a requirement to make a successful request for exceptional assurance, again, because this was not the case for the appellant.  

Despite the fact that the appellant did not meet the requirements for any grant of exceptional assurance, he was sent a letter on 16 November 2022 granting him a two week long “short-term assurance”. The court considered that a standard template had been used and the decision maker had seemingly done no more than consider that the appellant is an Indian national with no restrictions on his ability to return to India and then issued the template letter without further thought.

Given the appellant did not qualify under the exceptional assurance policy, the Court of Appeal considered it to be “inherently highly implausible” that the letter from the Home Office intended to give an undertaking that the appellant would not be considered an overstayer if he submitted an application during the period of the short-term assurance, as was argued by the appellant.

The court said “There is no rational reason why he should be entitled to have his overstaying disregarded simply because he has made a request for an EA long after he should first have done so, still less when that application was refused.” The court also considered it to be relevant that the letter was very obviously a generic template that did not even identify the appellant’s country of return.

In light of this, the court held that the letter did not amount to a clear and unambiguous undertaking, although the court was also critical of the letter and said that the Home Secretary could have argued that it would not have been fair to hold her to the letter because of the poor drafting.

Conclusion

Litigation around the exceptional assurance policy has been anticipated from the outset and so it is unsurprising to hear that there are a number of other similar cases stayed in both the Upper Tribunal and awaiting permission decisions in the Court of Appeal.