BY RAVI MERHAS – HEAD of PRIVATE CLIENT SERVICES
If a visa is expiring will the individual have to leave the UK?
The Home Office have issued limited guidance on immigration provisions made for Employers and Students affected by travel restrictions associated with coronavirus. (COVID-19).
No individual who is in the UK legally, but whose visa is due to, or has already expired, and who cannot leave because of travel restrictions related to COVID-19, will be regarded as an overstayer, or suffer any detriment in the future.
A visa will be extended to 31 May 2020 if an employee or student cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID19).
This requirement is to contact Coronavirus Immigration Team applies to individuals of any nationality whose leave expires between 24 January 2020 and 30 May 2020. It is important the correct information is provided to the Secretary of State.
Individuals will not be regarded as an overstayer or be subject to enforcement action if they are unable to attend a biometric appointment due to Covid-19 or if there are delays in processing your application.
These arrangements discussed on this page will apply initially, until 31 May, by which date they will be reviewed.
Can the individual switch immigration categories in the UK?
Individuals who cannot leave the UK due to travel restrictions or self-isolation and wish to stay in the UK in the long-term would ordinarily need to apply for a visa from their home country.
Where individuals would normally be required to return to their country of residence to apply for a visa in a different category, they will now be able to apply from the UK to switch. For instance, traditionally a Tier 2 (ICT) migrant could not switch in-country, they can under the new guidance apply within the UK to switch categories.
Individuals will need to be switching from/to a published eligible route and will need to meet the same visa requirements and pay the same application fee.
Tier 2 and Tier 5 Workers in the UK
The Home Office are aware that many workers sponsored under the Tiers 2 and 5 immigration routes are now working from home rather than their normal workplace due to the coronavirus pandemic.
Tiers 2 and 5 sponsors are normally required to report such changes of circumstances. However, due to the current exceptional situation, the Home Office have relaxed this requirement and will not require sponsors to do so if working from home is directly related to the pandemic.
Other changes must still be reported as usual. There is no further guidance and although there may be additional issues that require clarity and may be addressed by the Home Office at a later date, for now it would be best practise to report fully.
Tier 4 students
Tier 4 students are not normally permitted to undertake distance learning courses. However, due to the current exceptional circumstances, the Home Office will not consider it a breach of sponsor duties to offer distance learning to existing Tier 4 students in the UK or who have chosen to return overseas but wish to continue their current studies. Sponsors do not need to withdraw sponsorship in these circumstances. If a student has permanently withdrawn from, or formally deferred, their studies, the usual reporting requirements apply.
New international students who have been issued a Tier 4 visa but have been unable to travel to the UK are permitted to undertake distance learning and sponsorship does not need to be withdrawn.
New international students who have not yet applied for a visa but wish to commence a course by distance learning do not need to travel to the UK to do so and therefore do not require sponsorship under Tier 4.
Are there any risks to the individual falling into this extension scheme?
The guidance does not specifically state that the individual’s leave will be protected by section 3C of the Immigration Act 1971, however we anticipate the protection should be extended to all, if asked to speculate at this early stage. If the individual is not accepted for extension under this scheme, they risk becoming an overstayer and we would urge BHD Solicitors be consulted, in order to work out the best immigration strategy plan.
It is our opinion that the guidance and policy changes do not go far enough. We advise that where possible applications for extensions of leave under the rules should still be submitted to avoid delays later and to take full advantage of relaxed policy considerations. There is also scope for those who would not have been able to meet the mandatory requirements for leave to remain to submit alternative Human Rights applications.
Contact us today
For a same-day response, contact us today for advice and assistance with your sponsorship, staff, student or related legal needs. I have extensive experience with the Points Based system and I can be emailed directly at ravi.merhas@bhdsolicitors if you wish to arrange a consultation, or you can alternatively contact me via the blue contact us boxes above.
We are a firm specialising in immigration law with offices situated in Croydon and Central London and we are continuing to work remotely throughout the Coronavirus pandemic.