The Home Office has revised its policy on the immigration “amnesty” for survivors of the Grenfell Tower fire. In short, the government was offering a grant (or extension) of 12 months leave to enter or remain, with access to public funds included as well as the right to work. The 12 months limited leave can now be renewed so that there is a pathway to settlement – Indefinite Leave to Remain – after five years.

Applications must be made before 30 November 2017. There is no formal application form that must be used and no fee is payable; nor is the Immigration Health Surcharge.

This policy is additional to the government’s previous assurance that immigration checks will not be carried out on Grenfell Tower survivors, an assurance reiterated in the policy document.

Relatives of those survivors are also being offered a stay of up to six months, if they have already been granted leave to enter.

I would strongly advise anyone considering making such an application to take legal advice before doing so. Accepting a 12 month grant of leave may actually cause problems for some individuals by restarting the clock on the five years of lawful residence required for Indefinite Leave to Remain.

Who can apply?

As a survivor

Anyone for whom 12 months leave with recourse to public funds and with permission to work would be an improvement – at least in the short term – on their existing immigration status can apply. This includes:

• Those with no immigration status at all, including illegal entrants, overstayers and failed asylum seekers
• EEA nationals in the UK who are not exercising treaty rights (a group the UK Government considers unlawfully resident)
• Those with limited leave due to expire within 12 months
• Those with a status which is subject to a “no recourse to public funds” condition

The policy does not apply to an asylum seeker with an outstanding appeal or further submissions:

This policy does not apply to failed asylum seekers with an outstanding appeal against their refusal, or who have lodged further submissions which are outstanding, as they may qualify for asylum support.

Given that asylum support is far, far less than full access to public funds and does not include the right to work, the policy is to treat asylum seekers with outstanding claims worse than those whose claims have already been rejected. Note that the policy also says merely that failed asylum seekers with further submissions may be entitled to asylum support; they may end up with nothing at all. This is utterly inexplicable.

A connection with Grenfell Tower is also obviously required to qualify under the policy. Those who will qualify are those who:

• were a resident of Grenfell Tower on the date of the fire, whether or not they were there at the time of the fire. This includes those who were renting unlawfully through an illegal sub-let or informal arrangement; or
• were living close to Grenfell Tower and have been significantly affected by the fire because they have been displaced from their place of residence, which was destroyed or made uninhabitable by the fire. We anticipate that those living close to the Grenfell Tower that are significantly affected in this way are those residents living in Grenfell Walk at the date of the fire.

Dependants of these two groups will also qualify if they were “ordinarily residing” with a qualifying individual (not in the legal sense of “ordinary residence” I suspect, but rather in the everyday sense of “normally residing”).

Actually proving this connection is obviously going to be rather hard, especially with Home Office officials schooled in the “guilty until proven innocent” approach to case work. The policy is helpful in this respect, reminding officials that “those directly affected by the fire are unlikely to be able to provide documentary evidence of their address” and that officials should note “the difficult circumstances in which survivors and others directly affected by the fire find themselves.”

A non-exhaustive list of possible types of evidence is set out, which includes a redacted section:

• checking any evidence held by the Home Office to establish the last recorded address on a previous immigration application;
• official correspondence with the address, e.g. from DWP, HMRC, the local authority or from an energy supplier;
• evidence that individuals have been receiving support as a result of the fire;
• evidence that individuals were living close to Grenfell Tower and the fire has resulted in their home being destroyed or made uninhabitable;
• [Redacted]
• checking with other agencies, such as the police, the local authority and the Department for Communities and Local Government as to whether they can confirm whether a person has provided information about their links to Grenfell Tower or Grenfell Walk;
• evidence of a payment from the Grenfell Fire Emergency Fund such as a bank statement or BACS transfer;
• evidence provided on their behalf by a leading member of the community or recognised support group setting out what they know about the person;
• evidence they were hospitalised as a result of the fire; and
• evidence from a local school or GP records.

Many unlawfully resident migrants would be unable to provide any of this evidence anyway, even if their homes had not just been burned down. Living in Theresa May’s “hostile environment” means living without footprints. It may be that those who might benefit from the policy are unable to do so simply because they cannot prove their residence, never mind any fears they may have about later immigration enforcement.

As a relative

The policy on visiting relatives applies where:

• a relative has been granted a period of entry of less than 6 months following an application for entry clearance or a visa waiver
• a relative needs to stay for a further period because their circumstances mean they are required to remain in the UK for a further limited period
• they must provide ongoing care to their relative in the UK who was directly affected by the fire
• there is a delay in their ability to make funeral arrangements for someone who died in the fire

Relevant evidence can include:

• evidence that relatives are required to remain in the UK to provide necessary ongoing support for the above family member or members who are in the UK
• reasons why they are required to remain in the UK to provide such support
• information / evidence about the type of support they are required to give to their relative
• letters of support from community leaders or recognised support groups in support of their application to remain in the UK.

What status is granted?

As a survivor

Essentially, the policy offers an optional “upgrade” to any affected person who does not have limited leave with access to public funds and permission to work. This could either be in the form of a grant of leave or in relaxation of conditions on an existing grant of leave.

For example, a person with no immigration status will be granted 12 months limited leave with no bar on access to public funds and permission to work. A person whose leave will expire within the next 12 months can immediately apply for an extension on these terms (but may by doing so lose out, see below). A person whose current leave includes a “no recourse to public funds” condition and/or is prohibited from working can apply to have those conditions lifted.

The government announced on 11 October that the 12-month period of limited leave can be extended:

Under the original policy, eligible foreign nationals directly affected by the fire with uncertain immigration status could be granted 12 months’ limited leave to remain in the UK with full access to relevant support and assistance.

The changes announced today will enable those who qualify under this policy and who come forward before 30 November to have their limited leave extended and to qualify for permanent residence after a total period of 5 years’ leave granted under the policy, subject to meeting security, criminality and fraud checks.

At time of writing, the official guidance document I have been quoting from had not been updated to reflect these changes. There is however a note on the landing page acknowledging the announcement and promising that “updated guidance to cover this change will be published in due course”.

As a relative

Those who have come from outside the UK to support survivors or make funeral arrangements will be granted leave outside the rules for up to six months, without recourse to public funds and with no right to work. It is a “time-limited” policy, so any further leave beyond the six months will have to be applied for under the Immigration Rules – that is, there will be no more special provision for Grenfell relatives after this.

It is important to note that this is six months in total, not six months on top of any leave granted. For example, “a person granted 2 months’ leave to arrange a funeral of a family member who tragically died in the fire, may be granted a further 4 months’ leave because it has not yet been possible to recover their loved ones’ remains”.

Are there any disadvantages to applying for the amnesty?

Those with no status

For those with no existing status, the offer of a 12 month grant of leave with access to public funds and a right to work must be a very tempting one. There are no disadvantages I can see in the short term and there are lots of advantages. The government’s announcement on 11 October that survivors can qualify for Indefinite Leave to Remain under this policy appears to address the concerns previously expressed on this blog that people granted the initial 12 months leave would have a tough time regularising their status once the year was up.

We do need further details. One practical issue left open by the 11 October announcement is the fee for Indefinite Leave to Remain – will that too be waived for Grenfell victims? At a cost of £2,297, and rising significantly every year, that may prove prohibitive for survivors when they come to apply.

Those with existing leave

Those with an existing status should be extremely cautious. Individuals who have current leave but which will expire within 12 months or which includes “no recourse to public funds” and no employment conditions face choices and should seek legal advice. They can:

1. ask for their current leave to continue but for the conditions to be changed to allow access to public funds and access to employment, if they do not already have such access; or
2. accept instead a grant of leave of 12 months with access to public funds and permission to work.

The policy goes on:

Individuals with leave on an existing route to settlement under the Immigration Rules should consider the impact of switching to a grant of leave outside the Immigration Rules on the length of time it will take to reach settlement. Individuals cannot hold more than one type of leave to remain.

Imagine a person is on a route to settlement as a spouse and can work but has no access to public funds. It normally takes five years to achieve settlement and he or she is approaching the half way point, which means that he or she must soon apply for an extension. An extension application for a spouse normally costs £993 and involves completion of a complex 79-page form that probably requires the assistance of a lawyer. A 12 month grant of leave with no form, no fee and no complexity and with access to public funds may seem attractive.

However, this would have the extremely unfortunate effect of preventing the person qualifying for settlement. The rules for spouses and partners are set out in the alphabet soup in Appendix FM. The settlement rules include paragraph E-ILRP.1.3.:

The applicant must at the date of application have completed a continuous period of at least 60 months with limited leave as a partner under paragraph R-LTRP.1.1.(a) to (c)…

Note “with leave as a partner under paragraph…” If a person wanting to apply for settlement has a 12 month grant of leave outside the rules not as a partner under this Grenfell Tower policy, that person will not qualify for settlement. The grant of leave under the Grenfell Tower policy will re-start the clock.

A similar provision exists for those on the 10 year route under Appendix FM. Similar provisions also exist, I think, for other immigration categories. In short, a grant of leave under the Grenfell Tower policy will restart the clock for achieving settlement and is therefore a significant disadvantage for migrants with existing leave.

This is not because of the Grenfell Tower policy as such but because of the highly restrictive nature of the UK immigration rules and the Home Office phobia of migrants who switch status. In Home Office World a migrant has to decide what class or category into which he or she fits and then stay there. That said, it would be simple to have stated in the original policy that grants of leave under it would not prejudice future qualification for settlement, for example on the spouse and partner routes. The Home Office always has a discretion to waive requirements of the Immigration Rules.

These concerns are not affected by the 11 October change, on its face, although it is possible that the promised update to the guidance document will state that the clock is not stopped if someone switches to ‘Grenfell leave’ from their existing leave. That would certainly be in the spirit of the announcement.

Who is excluded?

There are several groups of people who are excluded from benefiting from the amnesty policy:

• any Foreign National Offender (FNO), i.e. those subject to deportation proceedings or whose continued presence in the UK has been determined by the Home Office to be not conducive to the public good;
• any person who, if they were to apply for asylum, would fall for exclusion under Article 1F of the Refugee Convention;
• any person subject to Terrorism Prevention and Investigation Measures – TPIMs;
• any person currently subject to a Deportation Order (including those appealing a Deportation Order);
• any person for whom there are concerns about criminality, character or associations, including extremist behaviour;
• any person who has failed security checks; and
• any person who has refused to supply their biometrics.

One way of looking at this is to say that any person, even a bad person, who survived the Grenfell Tower fire should be entitled to help. It does not diminish their suffering and their need for help that they have themselves done bad things in the past. If they are a really bad person they could always be deported later, I suppose. But this is not the approach of the Home Office, which excludes them entirely from the policy.

The groups excluded from the relatives policy mirrors the above, and adds that relatives do not qualify if they have not already been granted fewer than six months leave, or if they have already been granted six months leave.

Challenging a refusal

The policy states that there is no right of appeal against a refusal. That is not necessarily true. There is a right of appeal against refusal of a human rights claim and it is certainly conceivable that an application under this policy would be regarded by the tribunal as a human rights claim, depending on the circumstances of the case. Where there is no right of appeal, an application for judicial review might potentially be attempted instead. The chances of success would very much depend on the individual circumstances, but it would be fair to say that challenges to decisions under discretionary policies like this do not often go well for the claimant.

The policy states that while an application is under consideration a person will not be referred to Immigration Enforcement. There is a clear implication that if a person applies and is refused, though, they WILL be referred to Immigration Enforcement. This reveals the limited nature of the pledge not to ask questions about immigration status; where a person puts themselves forward it is seemingly a different matter.

The policy also states that those who make false claims WILL be referred to Immigration Enforcement. It is not clear in the policy what distinction is made between a claim that is merely refused, for example because the person cannot prove their Grenfell Tower connection, and a false claim. Past experience with the Home Office suggests that anyone refused on the basis of lack of evidence of connection to Grenfell Tower will be accused of making a false claim. If so, the policy explicitly says that they face prosecution for attempting to obtain leave by deception.

In conclusion, the offer of a 12 month grant of leave with no conditions will be useful to some but may be actively detrimental to others. There is also a risk in making an application; proving connection to Grenfell Tower will be very important and failure to do so may lead to prosecution.

A previous version of this post was published on 7 July. This version reflects the government’s policy announcement of 11 October; I will update it again when more details of the revised policy are known.