BY PAUL TURNER – SENIOR PARTNER
LEGAL 500 Recognised Leading Individual
At present the Secretary of State has issued policy that those who have leave to remain in the UK and cannot apply to extend their leave to remain can make an application to the Home Office to request an automatic extension until 31 May 2020. It is unknown how this may impact clients. The initial concern is that this is policy, and not Immigration rules approved by Parliament. Does this mean that you continue to benefit by the rights and entitlements you enjoyed under your previous leave. Section 3C of the Immigration Act 1971 sets out the criteria required for a valid in time application, to extend your leave to remain in the UK. The Immigration Rules state that a valid application is submitted on a prescribed form accompanied by the appropriate fee. Whilst it would seem unjustifiably harsh to penalise immigrants in the UK, it is possible that UK employers could raise the question whether a continued right to work exists. The majority of employers panic over documentation that confirms rights, due to their liability to fines for employing illegally. I have not seen any statements concerning the rights and entitlements of those who apply for the automatic extension. In this period, I recommend that all persons living in the UK with limited leave to remain in the UK, make the normal application for an extension of leave to remain where possible. After all, the application will eventually have to be made.
It is also probable that you will no longer be able to meet one of the mandatory requirements to be granted an extension of leave to remain. The applicant may have lost their job, or may not be able to meet the relevant minimum income thresholds. A specified piece of evidence may not be available due to the restrictions imposed by the government to protect the NHS as many businesses are no longer operating. Your situation may not be strictly covered by one of the relaxed concessions already published by the UK Government.
It is my opinion that where all of the rules cannot be met for an extension of leave to be granted, then reliance upon human rights will need to be considered. For example, a person living in the UK as a visitor, or even as an overstayer, cannot extend their leave to remain as the fiancé, partner or unmarried partner of a British or settled person. However, now it is clear that it would not be feasible for the visitor to return to their country of origin to apply for entry clearance to return in this COVID-19 situation. In this situation as a family life is being enjoyed, reliance can be placed upon Article 8 ECHR that protects the right to family life. The UK Government cannot make decisions that are disproportionate with those rights and in my opinion, there is a strong case to make.
Another example to plead a successful case regardless of having lawful or unlawful status in the UK is where there are significant obstacles to re-integration to the applicant’s home country. Those who may have been refused before when arguing Article 8 ECHR and the right to a ‘Private Life’ can now submit fresh applications. Every case will need to be determined on its own facts of course, but it is clear that if you fell into one of the vulnerable groups to contract the COVID-19 virus, it is arguable that the significant obstacle to re-integration test is met where travel and return to your country of origin will increase exposure to the virus..
In respect of those who have leave to remain under the points based scheme, a case to consider is Junied, R (on the application of) v Secretary of State for Home Department  EWCA Civ 2293
The applicant appealed a decision refusing him leave to remain as a Tier 1 (Entrepreneur) Migrant, and argued that a particular requirement of the Immigration Rules was impossible of fulfilment, and that in consequence the decision-making process on the part of the Secretary of State was unfair and unreasonable. The applicant argued that it was impossible for him to obtain a particular specified document, although it was clear that he did meet the spirit of the rules. The Court held that whilst this appears unfair, the refusal was not unlawful, because the rules are specific in their requirements; and the applicant in the case failed to meet those requirements and that the Rules were still rational and policy based, and although strict, are not arbitrary or incapable in all cases of achievement, and that whilst some individual applicants may be unable to comply that cannot of itself make the requirement of the Rules unlawful.
The Secretary of States counsel did not object to a claimant in these circumstances from applying to the Home Office for residual discretion to be considered, but in the following paragraph it is made clear that the correct application would need to be made for consideration outside the rules. Therefore, the Court was not required to consider the issue of the application of discretion because the wrong application was made. Paragraph 43 of the Judgement provides;
Mr Malik, for his part, did not dispute that there might be available the general residual discretion available to be exercised in immigration cases by the Secretary of State outside the Rules in appropriate exceptional circumstances. But his point was that there was not a residual discretion under the PBS itself. As will be gathered, I agree with him. Consequently, if an applicant wishes to invoke that wider discretion he must, as Mr Malik submitted, make a separate application for that purpose: as, indeed, the decision letter in this case so indicated. The position therefore remains that there is no residual discretion, by reference to asserted “fairness” available to the Secretary of State under the PBS to disapply the specific requirements of paragraph 41-SD(c)(i). That, I note, was also the approach and conclusion of Martin Spencer J in R (on the application of Khajuria) v Secretary of State for the Home Department EWHC 1226 (Admin), a case involving paragraph 46-SD(h)(i) of Appendix A. I consider that he was correct on that.
To conclude it is my view that where a particular immigration rule in a points based scheme case cannot be met, that in order to ensure that the Home Office considers its powers of residual discretion, that the correct application is made on human rights grounds or specifically for leave to remain to be granted outside the immigration rules. This is important at this time as the Secretary of State is likely show compassion to people of all nationalities who are living in the UK, in this time of national emergency. If there is a period of time to apply discretion favourably, it must be now. The Home Office have given an expectation that they are, in publishing the following statement;
‘In these unique circumstances you’ll be able to apply from the UK to switch to a long-term UK visa until 31 May. This includes applications where you would usually need to apply for a visa from your home country’
Applications can still be submitted online in the normal way and documentary evidence and legal submissions can be sent to the Home Office. There is a delay in being able to provide biometrics but that will resume when it is safe. We are continuing to submit applications for clients and have procedures in place for all the work to be performed by telephone and video conferencing to safeguard your health.
I am recognised as a ‘leading individual’ in immigration law by Legal 500 and have extensive experience in representing vulnerable clients in complex cases. You can contact me directly at firstname.lastname@example.org to arrange a consultation, or you can contact us via the blue contact us boxes above. Barnes Harrild & Dyer are specialist Immigration solicitors.