GARDEN COURT – 11 January 2024
“As regards sub-paragraph (f), the Claimant was fully advised about the options available to him, and chose an option which would result in him becoming an overstayer.”
OUR COMMENTS
Exceptional Assurance, 39E(5), should have been requested by UK Migration Lawyers, on 1 February 2021, to prevent overstaying (the Exceptional Assurance concession). Those granted Exceptional Assurance were informed they could apply for permission to stay (the Covid-19 concession).
The time between an applicant’s request for exceptional assurance being submitted and it being granted was considered as if the applicant held exceptional assurance from the date of request.
BACKGROUND
The COVID-19 pandemic was an unprecedented event which led to the closure of borders across the world. The Home Office needed to respond to this to ensure that individuals in the UK did not face uncertainty of their immigration status because of circumstances outside of their control. Namely, those people whose immigration status had expired, or was due to expire, during the covid period but who could not leave the UK.
There were 2 key phases to the policy introduced:
- the Coronavirus Extension Concession Period – 24 January 2020 to 31 July 2020 (with a grace period until 31 August 2020)
- the Exceptional Assurance Concession (including short term assurance) – 1 September 2020 to 28 February 2023
“Exceptional assurance did not grant any form of immigration permission to individuals, but instead prevented current or future adverse consequences from overstaying during the period of assurance given.”
“The policy intent was that during a period with exceptional assurance or short-term assurance the holder would not be regarded as an overstayer or suffer any detriment in future applications relating to that period. Those granted exceptional or short-term assurance were informed they could apply for permission to stay or leave the UK before the expiry of their assurance.”
Immigration Rules part 1: leave to enter or stay in the UK
Exceptions for overstayers
“For the purpose of paragraph 39E(5), “exceptional assurance” means a written notice given to a person by the Home Office stating that they would not be considered an overstayer for the period specified in the notice.”
It wasn’t sticking out to Weightmans either (after a year).
WEIGHTMANS – 29 February 2024
“The client care letter records that “We discussed that as a visitor you should be applying from South Africa to enter the UK as a spouse however given the current pandemic and travel restrictions you wish to submit the application from within the UK based on the concession”.
This gave our client the wrong impression that there was a concession that applied to him. But had our client been properly advised that the concession only applied to individuals who could not apply from outside the UK because of coronavirus he would have concluded the concession could not apply to him because he was able to return to South Africa, irrespective of his “wish” or preference.”
OUR COMMENTS
This is incorrect.
KENNEDYS LAW – 6 July 2023
“We agree that your Client became an overstayer in the UK after the time for an appeal had expired. The mere fact that your Client was an overstayer did not prevent the Home Office from granting him leave in the UK or a further right of appeal had they wished to do so.”
KENNEDYS LAW – 27 September 2023
“Your Client was advised during the initial consultation that he would be an overstayer during the processing of the application up to the point of the SSHD making a decision. We restate the points made in paragraph 1.8 of our letter dated 6 July 2023.”
AND
KENNEDYS LAW – 6 July 2023
“The application our Client made on the basis of your Client’s instructions was a viable one in all of the circumstances. In any event, your Client was advised that the prospects of success were “arguable” and that a successful result could not be guaranteed.”
KENNEDYS LAW – 27 September 2023
“Our Client considered that there were ‘arguable’ grounds and stated the prospects as such in the Client Care letter.”
KENNEDYS LAW – 25 January 2024
“Our Client was correct to advise that making a further in-country application was an available option, but that success could not be guaranteed.”
AND
”As we have previously raised, the contemporary guidance on the Covid-19 concession as at 9 February 2021 read “If you decide to stay in the UK, you should apply for the necessary permission to stay to regularise your stay. You’ll be able to submit an application form from within the UK, whereas you would usually need to apply for a visa from your home country” (our emphasis). Without waiver of privilege, we confirm that we have sought advice from specialist immigration counsel and in his view, a reasonably competent immigration solicitor reading the concession as it stood in February 2021 would have concluded that the words underlined above meant that the strict requirements of the Rules as to a person’s immigration status (in this case your Client’s status as a visitor) would be waived. Counsel’s clear advice is that the advice given by our Client in February 2021 was not negligent and our Client’s interpretation of the concession at that time was an entirely reasonable one.”
OUR COMMENTS
The guidance is very clear:
- If you decide to stay in the UK, you should apply for the necessary permission to stay to regularise your stay – the Exceptional Assurance Concession, and
- You’ll be able to submit an application form from within the UK – the Covid-19 Concession.
In other words (1) permission to stay, to regularise your stay. If granted, (2) submit the application.
The Home Office guidance for Home Office staff specifically refers to concessions – plural. When you add -s or -es onto the end of a word, you change it from being singular (one of something) to being plural (more than one of something).
This is not the first misinterpretation of the English language.
https://lawsjaws.co.uk/?p=6443
A reasonably competent immigration solicitor would keep up to date with the ever changing immigration law.
If you intend to stay in the UK
You are also able to apply for leave to remain to regularise your stay if you have been issued with ‘exceptional assurance’. You must submit your application before the expiry of your ‘exceptional assurance’.
OUR COMMENTS
The Home Office rejected the application because UK Migration Lawyers did not get permission to stay (the Exceptional Assurance Concession), to submit the application (the Covid-19 Concession).
https://lawsjaws.co.uk/?p=7478
Permission not forgiveness –https://lawsjaws.co.uk/?p=7651
GARDEN COURT – 11 January 2024
“As regards sub-paragraph (f), the Claimant was fully advised about the options available to him, and chose an option which would result in him becoming an overstayer.”
[…] https://lawsjaws.co.uk/?p=7765 […]
[…] https://lawsjaws.co.uk/?p=7765 […]