Coronavirus and the UK immigration system

Measures taken to combat the spread of coronavirus and COVID-19 disease have changed almost every aspect of society both here in the UK and around the world. The immigration system is no exception. This post gathers together various updates on changes to immigration law and practice caused by coronavirus.

For now, in contrast with our normal practice, we’ll be keeping this post continually up to date rather than covering new coronavirus developments as separate blog posts that may become rapidly out of date. Use the page contents to navigate.

For lawyers overwhelmed by the number of new guidance documents, Lucy Reed’s take over on Pink Tape may provide some light relief.

Visa extensions and other concessions

General policy

Particularly pressing is the situation for people who are in the UK on an expiring visa and unable to leave because of travel restrictions. Government guidance on this initially focused on Chinese citizens and residents of China stuck in the UK, as they were most affected at the time that guidance was first published, in mid-February 2020.

The guidance was updated on 24 March to cover other nationalities. It leaves many questions unanswered but the top line is as follows:

If you’re in the UK and your leave expires between 24 January 2020 and 31 May 2020

Your visa will be extended to 31 May 2020 if you cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

The guidance continues:

You must contact the Coronavirus Immigration Team (CIT) to update your records if your visa is expiring.

You should provide:

  • your full name (include any middle names)
  • date of birth (dd/mm/yyyy)
  • nationality
  • your previous visa reference number
  • why you can’t go back to your home country, for example if the border has closed

We’ll let you know when your request is received and when your visa has been extended.

This guidance overrides a previous version at the same webpage. The older version unilaterally conferred leave to remain until 31 March to Chinese citizens whose visas had or were due to expire between 24 January 2020 and 30 March 2020. It also allowed non-Chinese, non-EEA nationals in the UK who are normally resident in China to get an extension of leave on application to the coronavirus hotline, in a similar process to the one now in force for all nationalities.

The Immigration Law Practitioners Association says that “it is immediately apparent that the guidance is not adequate”. ILPA has however been provided with an additional Coronavirus (COVID-19) factsheet: visa holders and short-term residents in the UK. As of 25 March, this was not publicly available but can be downloaded here (pdf).

The fact sheet is not a great advance on the public guidance, but adds that “individuals will be advised that UKVI have noted their details; they will not be subject to enforcement action; and this period will not be held against them in future applications”.

The legal basis for all this is unclear, to put it mildly.

There does not appear to be any concession for people in the reverse position: those with a 30-day visa giving permission to enter the UK but who are unable to do so before it expires due to travel restrictions.

Switching

The guidance also includes information on switching visas:

If you’re applying to stay in the UK long-term

During 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.

You’ll need to meet the same visa requirements and pay the UK application fee.

This includes those whose leave has already been automatically extended to 31 March 2020.

You can apply online. The terms of your leave will remain the same until your application is decided.

“Long term” here does not mean indefinite leave to remain. An accompanying press release gives the example of switching from “Tier 4 (student) to Tier 2 (General Worker)”. 

There is now brief Home Office coronavirus guidance for organisations who sponsor overseas workers or students under Tiers 2, 4 and 5 of the Points Based System. It promises:

We will not take enforcement action against sponsors who continue to sponsor students or employees despite absences due to coronavirus.

Sponsors are not currently required to report any absences from students or employees sponsored under Tier 2, Tier 4, or Tier 5, where those absences have been the result of the consequences of the coronavirus outbreak. 

Sponsors will also not be required to withdraw sponsorship for affected students who have been unable to attend for more than 60 days or for employees who have exceeded four weeks of absence without pay.

Tier 4 student can now do distance learning, although if they quit the course altogether this must be reported as usual.

Similarly, Tier 2 and 5 sponsors do not need update the Home Office if workers are now working from home provided that the switch to home working is because of the pandemic.

There is coronavirus advice for Tier 2 and Tier 4 sponsors on the Carter Thomas website. Lewis Silkin has some advice for Tier 2 sponsors, as well as a page on the immigration implications of the government’s crisis employment policies.

Special hotline

As mentioned above, the Home Office has set up a coronavirus helpline:

Email: [email protected] Your email must be in English.

We’ll reply to your email within 5 working days.

You can also call the Coronavirus Immigration Help Centre. If you’ve emailed the help centre already, please do not contact them by phone.

Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm)

This seems to be intended for queries specifically about the concessions discussed above. The Home Office emphasises that “if your query doesn’t relate to immigration provisions associated with coronavirus (COVID-19) please contact the general immigration helpline on 0300 123 2241″.

UK visa application centres

Within the UK (UPDATED 27 March)

All visa application centres within the UK are closed as of 27 March.

Sopra Steria, which runs the network of Visa and Citizenship Application Centres on behalf of the Home Office, has the following message on its website:

The UKVCAS service is currently suspended

The worldwide response to COVID-19 continues to affect the UK’s Visa and Immigration Service. As a result, the UK Visa and Citizenship Application Services (UKVCAS), led by Sopra Steria on behalf of UK Visas and Immigration (UKVI), has suspended all services to help protect the health and wellbeing of our customers and staff.

This will remain under review with UKVI as the situation evolves.

Those with appointments will have them automatically rescheduled or get a refund.

Anyone with an expiring visa is referred to the visa extension guidance outlined above. To reiterate: someone stuck in the UK on an expiring visa should contact the coronavirus helpline to get an extension.

Outside the UK

A second Home Office factsheet of 24 March, Coronavirus (COVID-19) factsheet: visa customers outside of the UK, can be downloaded here (pdf). It notes that “many of the UK’s Visa Application Centres (VACs) are currently closed and we anticipate more closing”.

Those with appointments at a closed visa centre should be contacted. Those already in the system and who want their passport back should contact the company which runs the visa centre in question, which will either be TLScontact or VFS Global. But “if applicants are concerned about their passport, they can contact the Coronavirus Immigration Team at [email protected]”.

VFS Global has a dedicated coronavirus page listing the ones which have closed. As of 23 March 2020, it reports that:

UK has stopped accepting visa applications in Argentina, Bahamas, Barbados, Bermuda, Bhutan, Brazil, Canada, Cayman Islands, China, Colombia, Dominican Republic, Ecuador, Fiji, Guatemala, Guyana, India, Iran, Jamaica, Kuwait, Malaysia, Maldives, Mongolia, Nepal, New Zealand, Papua New Guinea, Peru, Philippines, Sri Lanka, St Lucia, Suriname, USA and Venezuela.

In addition, it says that “UK has stopped accepting Priority Visa applications in Japan, Indonesia, Australia, New Zealand, Fiji, Papua New Guinea, South Korea, Malaysia, Philippines, Singapore, Taiwan, Hong Kong and Brunei”.

A Frequently Asked Questions page has answers from VFS on things like “how do I get my passport back?” and “do I get a refund if my visa is already issued but I can’t travel?”.

Other visa centres overseas are run by TLScontact. It does not appear to have a centralised list of closures, but applicants can check the situation in their country through the TLScontact website.

Immigration tribunal hearings (UPDATED 27 March)

As of 1pm on 26 March, there is a general ban on leaving the house without reasonable excuse. The coronavirus lockdown regulations (for England) do include an exemption “to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings”. But the nation’s courts and tribunals are rapidly organising video and phone hearings so that lawyers and appellants need no longer turn up in person.

HM Courts and Tribunals Service is now realising a daily operational update, which confirms that “personal attendance at hearings in the First-tier Tribunal (Immigration and Asylum Chamber) have been suspended”. It has also released a list of buildings which will remain open during the pandemic, but only for “hearings that cannot be heard by video or telephone and which cannot be delayed”. Most tribunal action for the foreseeable future will be conducted remotely.

Remote hearings: overview

The Senior President of Tribunals issued an emergency practice direction on 19 March. It covers all chambers of the Upper and First-tier Tribunals (i.e. including immigration).

The practice direction says that:

Where it is reasonably practicable and in accordance with the overriding objective to hear the case remotely (that is in any way that is not face-to-face, but which complies with the definition of ‘hearing’ in the relevant Chamber’s procedure rules), it should be heard remotely.

Judges will make allowances for the pandemic when considering applications for extensions of time and postponement of hearings.

The practice direction also allows for:

  • Decisions to be made on the papers without a hearing where possible
  • Chamber Presidents to “triage” cases
  • Hearings to go ahead in a party’s absence, so long as this can be done in accordance with the overriding objective to deal with cases fairly and justly

This has been supplemented by more detailed arrangements for each of the First-tier and Upper immigration tribunals, outlined below.

Remote hearings: First-tier Tribunal

On 21 March, President of the First-tier Tribunal (Immigration  & Asylum Chambers) Michael Clements wrote to the Immigration Law Practitioners Association to say that hearings are to go remote:

From Wednesday, 25th March onwards, there will be no face to face hearings listed in any centre. Applications for bail and emergency work will continue to be given priority but, save in exceptional circumstance, applications and hearings will be conducted remotely.

Notices circulated by individual tribunal hearing centres state that hearings scheduled from 25 March onward have been converted to case management hearings instead. The version of the notice issued by the resident judge at Newport on 24 March states:

In view of the rapidly changing circumstances created by the Covid-19 pandemic, the President of the First-tier Tribunal (IAC) has directed that all appeals will proceed by way of a  Case Management Hearing (CMR)  via telephone or Skype which will take place on a date to be notified  in a time slot to be allocated. All current scheduled hearings are vacated.

Appellants must file evidence and submissions/skeleton arguments within 15 working days. The Home Office will then have 10 working days to respond. The immigration judge will review the evidence, submissions and any response, and decide whether he or she can decide the matter without a hearing.

Representatives must have the following information to hand for the case management review:

(a) the means by which they, the appellant(s) and any witnesses, will engage with the Tribunal (the Tribunal expects all representatives to have access to Skype or Skype for Business);

(b) the location of the Appellant;

(c) the location of each witness, if any;

(d) language of interpreter(s) if not already provided;

(e) the number of pages in the bundle of documents to be relied upon;

(f) no bundle may exceed 50 pages without the consent of the Tribunal;

(g) any documents provided to the Tribunal must be in .pdf format and reduced to the minimum number of documents required, for the avoidance of doubt generic bundles will not be accepted.

There are special rules in asylum cases: “the Appellant, if represented, must set out at the commencement of the ASA [appeal skeleton argument] a summary of the Appellant’s case together with a schedule of issues as if the Pilot on-line Digital Pilot Directions applied (a copy of which is attached) and the Respondent must respond accordingly subject to the time limits set out in this Notice being applicable”.

Details of the process may vary between tribunals. The equivalent notice for Manchester immigration tribunal, for example, states that appellants will not be given a time slot for the remote case management hearing, but instead must be available from 10am.

Download the full Newport notice here (Word document).

The President has also issued Practice Statement Note No 1 2020: Arrangements during the COVID-19 pandemic. It commands a shift to lodging appeals online:

(1) With the exception of HR/EEA appeals, all appeals to the First-tier Tribunal must be commenced using the online procedure unless it is not possible to do so.

(2) If an appellant contends that it is not possible to commence an appeal by using the online procedure, the appellant may commence an appeal without using the online procedure but must at the same time state why it is not possible to do so.

(3) The Tribunal shall consider any reasons provided in support of appeals commenced in accordance with paragraph [2] above and may give such directions as it thinks fit, having regard to the overriding objective, including directing that the appeal must continue using the online procedure, be stayed, be determined by a means to be directed having regard to those reasons or be determined without a hearing.

Remote hearings: Upper Tribunal

The Operations Manager at the Upper Tribunal (Immigration & Asylum Chamber) circulated the following note by email on 20 March:

A decision has been taken to cancel all listed UTIAC cases, these now include JR, Age Assessments, appeals and regional cases with the odd exception due to alternative arrangements having already been made.  All parties in all cases will be formally notified.

This was followed on 23 March by a presidential guidance note onArrangements during the COVID-19 pandemic. This puts flesh on the bones of the emergency practice direction so far as the Immigration and Asylum Chamber of the Upper Tribunal is concerned. The bottom line is:

If a hearing is necessary, the “default” option during the pandemic is, therefore, that the hearing should be conducted remotely.

The guidance note outlines processes for:

  • Making certain appeal decisions without a hearing
  • Conducting remote hearings
  • Arranging interpreters
  • Filing urgent judicial reviews (ie those “using or including form T 483 or T 484”). More on this issue in a separate note (pdf).

The note concludes: “it needs to be appreciated that unfolding events during the pandemic may affect the extent to which UTIAC can operate by reference to this Guidance. In any event, the need to adopt new ways of working may well lead to challenges on the ground, which will need to be approached sympathetically by parties and the UTIAC alike”.

Other resources

The immigration team at Lamb Building has put together a briefing on the coronavirus situation covering both the immigration tribunals and the higher courts. If you have a question not covered in this section, it may be answered there.

All coronavirus guidance documents, practice directions etc from the judiciary are on the Judicial Office website.

Asylum

Interviews

The Home Office has decided to “pause face to face substantive asylum interviews for now”, according to correspondence from the Asylum Operations team. All interviews scheduled from 19 March onward are cancelled.

Some initial screening interviews are also being cancelled, according toRight to Remain, although the Law Centre NI reports that they are continuing in Northern Ireland.

Further submissions

As of 18 March, asylum seekers who wish to put in further submissions with a view to have their case considered as a fresh claim no longer need to turn up in person. The following email is from the Assistant Director of Further Submissions and Further Leave Casework at UK Visa and Immigration:

With effect from Wednesday 18th March, until further notice the Home Office has temporarily suspended the requirement for Further Submissions to be lodged in person in Liverpool. The Home Office is also cancelling all existing appointments. Applicants wishing to lodge a Further Submission in support of a fresh claim for asylum will be able to submit this via e-mail to a dedicated in-box or through the pre-existing postal route. The in-box for Further Submissions to be e-mailed to is : [email protected]

Asylum support

The Asylum Support Appeals Project advises that asylum seekers who are appeals rights exhausted  “should remain on support as, due to the current Covid-19 pandemic, it is impossible for them to leave the UK. In the event that they do receive notification that their s95 support is being discontinued, they should immediately apply for s4 support”.

More information in this Asylum Support Appeals Project briefing onCovid-19 and asylum support (pdf).

Other asylum resources

Both Right to Remain and the Refugee Council are keeping tabs on corona-induced changes to the asylum system. If you have a question not covered in this section, it may be answered there.

Enforcement

Immigration detention

The Home Office has already released around 350 people from immigration detention. But a senior official told the Home Affairs committee of MPs on 18 March:

there is no plan to have a wholesale systematic release from our immigration removal centres.

An urgent legal challenge by the charity Detention Action aimed at securing the release of all immigration detainees was rejected by the High Court on 25 March. But the charity says that the Home Office has made various commitments to safeguard the wellbeing of detainees:

  • Enhanced screening, identification and monitoring of those at risk or showing symptoms of Covid-19, particularly for this with underlying health conditions.
  • Ensuring that persons at increased risk from Covid-19, and persons who are symptomatic, are provided with facilities to self-isolate in single-occupancy rooms and are provided with individualised care plans
  • A review of cleaning practices within detention centres to ensure compliance with Public Health England guidance
  • Provision of anti-bacterial cleaning materials to detainees, upon request
  • The introduction of social spacing measures in communal areas
  • The production of specific guidance to explain in clear terms how to reduce the risk of an outbreak of Covid-19

Detention Action’s director, Bella Sankey, adds that the department has given “an undertaking to proactively review the detention of all those held under immigration powers according to updated guidance and with a view to further significant releases”. There is also a “very strong presumption against any new detentions for people facing removal to around 50 countries”, including Jamaica, India, Pakistan, Afghanistan, Iraq, Sudan, and Albania.

The Home Office says that “the vast majority of detainees still in immigration removal centres are foreign national offenders”.

With many countries closing their borders and flights unavailable, immigration judges may be receptive to the argument that removal is no longer imminent and grant bail accordingly.

As of 26 March, visits to immigration removal centres were no longer possible.

Bail reporting suspended

The Home Office website now says:

Following Public Health England’s advice on coronavirus (COVID-19), the Home Office has decided that reporting as a condition of immigration bail should be temporarily deferred while it reviews how frequently people should report. You will receive an SMS text message soon with details of your next reporting date.

This follows widespread reports of those on bail receiving texts about the suspension of reporting requirements. Those can now be taken as officially confirmed.

Voluntary removals

The Voluntary Returns Service Communications and Engagement Team circulated an update on its operations on 20 March:

…we are currently experiencing difficulties that mean that we cannot currently support assisted returns for people who require a level of assistance upon return from the United Kingdom. We are experiencing infrastructure and other issues that make it difficult to impossible to offer that level of support at this time.

We have therefore made a very difficult decision to cease offering assisted returns at this time.

We will continue to register an interest from people who wish to return, and to offer other levels of support to help as many people as we possibly can. Where we can arrange flights, get travel documents etc we will continue to do this, and we are very happy to talk to people to see what help we can offer on an individual basis.

The widespread cancellation of flights has obvious ramifications for enforced returns as well, but at time of writing we have no information about whether there will be any general suspension of removals.

No charge for NHS coronavirus testing

Regulations have been passed adding “Wuhan novel coronavirus (2019-nCoV)” to the list of diseases for which no charge is to be made for NHS treatment, regardless of the patient’s immigration status. This change will have most significance for short term visitors and for migrants without lawful status, who normally have to pay for NHS care. Those lawfully resident are already entitled to use the NHS.

There are separate regulations for England, Scotland, Wales and Northern Ireland, since healthcare is a devolved matter.

Government guidance makes clear that a coronavirus test that comes back negative is still free under this exemption:

This exemption from charge will apply to the diagnosis of the condition, even if the outcome is a negative result. It will also apply to any treatment provided for a suspected specified condition, up to the point that it is negatively diagnosed.

This guidance covers the NHS in England, but it would be surprising if the position in the other jurisdictions were any different. 

EU Settlement Resolution Centre closed

The office that deals with EU settled status enquiries has closed.

All callers to the Resolution Centre now get the following recorded message:

Unfortunately virus quarantine measures have now meant we’ve been unable to keep our call lines open. This is obviously not ideal and is something for which we’re truly sorry, but it’s essential to stop the spread of the virus.  Please remember to follow government guidelines during the COVID-19 outbreak. We’ll be open again once we have the ability to open safely.

However, Citizens Advice have been in touch to say that they expect the Resolution Centre to re-open in a matter of days. The Home Office have told them that the closure is temporary while Resolution Centre staff move to home working.

Other

Legal aid

The legal aid system is changing in response to coronavirus, withemergency guidance in force until at least 30 June 2020. 

On cashflow, the guidance says:

We recognise the current situation will have cashflow implications for firms, and as a priority we are processing bills and other payments as rapidly as possible. We are working with Ministry of Justice (MoJ) and provider representative bodies to investigate what other immediate actions we can take to support firms. 

Time limits for delegated function applications, substantive amendments and appeals against Legal Aid Agency decisions have been suspended. Admin requirements are being reduced: 

Routine contract manager visits to provider offices will not take place at this time and we will not be undertaking new contract audit or peer review work unless exceptionally needed.

Similarly, the Legal Aid Agency says that “we understand the current context may mean you are unable to meet the office and supervisory requirements set out in your contract and that reasonable actions will be needed to follow wider Government advice and to maintain the well being of your staff and clients. We will not take any action in this situation”.

The guidance also says that digital client signatures are just as valid as handwritten signatures  for Legal Aid Agency contract purposes.

Citizenship ceremonies

Local authorities are, perhaps unsurprisingly, calling off citizenship ceremonies. See for example announcements by Kingston Council andWestminster Council. The Home Office has also stopped issuing naturalisation and registration certificates, at least according to Hackney Council.

The process of becoming a British citizen is not legally complete until the person has attended a citizenship ceremony: section 42 of the British Nationality Act 1981. It therefore appears that the citizenship process has effectively ground to a halt.

Subject Access Requests

The Subject Access Request Unit has told ILPA that it is only processing requests made online, and only providing data held electronically, until further notice. The unit can be contacted [email protected]

OISC

The Office of the Immigration Services Commissioner has cancelled the Level 1 competence exams scheduled for 31 March and 30 April.

The next set of exams on the slate are on 26 May in Manchester and 29 May in London. The OISC says that these are under review: “an update on assessments due to take place in May 2020 will be published in the coming weeks”.

There is also a Q&A for OISC advisers.

The OISC office itself is closed as of 24 March. All correspondence should be by email rather than post.

This article was originally published on 20 February 2020 and is being continually updated with the latest information.

Source: Freemovement.org.uk

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