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Home Secretary brushes off fears about legality of coronavirus visa extensions


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More on the mysterious legal power that the Home Secretary claims to have to grant automatic visa extensions to foreign NHS workers.

Asked about the legal basis for automatic extensions by MPs on the Home Affairs Committee this morning, Priti Patel said:

Of course, as Home Secretary, I’m able to exercise discretion to extend immigration leave in exceptional circumstances.

Patel made the same claim in a letter to the committee.

The problem, as Colin has pointed out, is that the Immigration Act powers that could be used to grant blanket visa extensions require written notice to be given to each individual affected, or a statutory instrument.

There is no indication that the Home Office thinks a statutory instrument is necessary. That leaves individual written notification — which may be why Patel also emphasised that the department is working with the NHS to identify those eligible for the extension.

But if the extension policy relies on direct communication with all those supposed to benefit from it, it is clearly not “automatic” at all.

In addition, tracking down all those who are eligible is clearly a work in progress. NHS workers whose leave has already expired and think they have had it automatically extended may be in for a rude awakening — we simply don’t think that it is legally possible without individual written notice or legislation.

Leaving that minor detail aside, the Home Secretary was also asked to clarify whether the offer applied only to NHS workers on Tier 2 work visas. She didn’t sound particularly sure, but the letter above her signature is unambiguous on this point:

The offer applies to any NHS doctor, nurse or paramedic who is subject to immigration control, not just sponsored migrant workers on a Tier 2 (General) or Tier 5 visa, whose visa will expire before 1 October 2020 and where the NHS Trust confirms they want to continue to employ [the person].

The Home Office has also “extended the automatic visa extension offer to a range of health professionals in the NHS and the Independent Health Sector, including midwives, social workers and medical radiographers”.

It would be helpful to know what the exact list of “health professionals” covered by the policy is. But as there is no statutory instrument and no policy guidance, for now we only know that it includes the professions listed above, plus pharmacists (mentioned in a separate press release).

In a long-awaited Zoom appearance before the Home Affairs Committee to discuss her department’s coronavirus response, Patel repeated her recent hint that the Immigration Health Surcharge could be scrapped for NHS and care workers, but stopped short of making any actual commitments.

The Home Secretary was similarly vague but emollient on asylum support during the crisis, saying that “if we need to do more around funding support, then that is something the department will absolutely look at”.

And Home Office official Shona Dunn had this to say about families struggling to keep their income level high enough to keep their spouse visa:

I can absolutely confirm that the Home Office will work with those individuals to make sure that we are supporting them through that process. There are a number of different ways in which people can meet that requirement beyond their salary. But also beyond that, and recognising the point that it’s important we don’t disadvantage people for things they cannot control, we will absolutely work flexibly with people in those circumstances.

Which sounds promising — but as Nichola points out, the devil will be in the detail.

Patel also addressed requests for a coronavirus extension to the EU Settlement Scheme deadline, saying that “we see no reason to extend the deadline when there’s still over a year to apply”.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.