Leave in a time of corona: can the Home Office grant blanket visa extensions?

With international travel closing down due to the coronavirus it is becoming not just unwise but impossible to move from some countries to others. Even if inbound flights are not banned by a country, airlines are finding it increasingly difficult to keep flights going anyway. This raises the question of what happens to people trapped outside their country of nationality. If their visas are coming to an end, do they need to apply to extend them and, if so, on what basis?

On 17 February 2020, the Home Office announced that Chinese citizens in the United Kingdom would automatically have their visas extended without their needing to do anything, as long as they met certain conditions. The announcement will mainly have covered visitors and students. The text of the announcement read:

If you are a Chinese national in the UK and have been compliant with the conditions of your visa prior to the coronavirus outbreak, your visa will be automatically extended to 31 March 2020 if your visa has an expiry date between 24 January 2020 and 30 March 2020.

You’ll also get an automatic extension if you’re in the UK on a long-term standard visitor visa that lasts 2, 5 or 10 years and you have reached the maximum stay of 180 days between 24 January 2020 and 30 March 2020.

You don’t need to do anything to get this extension.

Visitors and students at the end of their course would normally have no legal basis to extend their stay in the UK. Making a doomed application for an extension on exceptional grounds would cost over £1,000.

And it is very important that a person does not overstay their visa. To do so knowingly is a criminal offence. Working without lawful status is a strict liability offence. Lack of immigration status also forces certain people to act in certain ways towards you: your landlord must evict you or face a fine or even commit a criminal offence, for example.

So this is a good idea in principle.

Why couldn't this happen with Brexit?

This automatic bestowal of leave to remain on a cohort of people based on nationality and visa expiration date is not something I have seen before. It proves that the Home Office is willing to contemplate a declaratory system of leave to remain.

A declaratory system is something that the Home Office has thus far resisted as a Brexit solution for EU citizens living in the UK — instead of them having to apply individually. One key difference is that all Chinese visa holders are already on Home Office systems, whereas the majority of European residents are not. Still: food for thought.

— John Vassiliou

The problem is, I am not sure the Home Office had the legal power automatically to extend visas, at least in the way they apparently think. I would be very happy indeed to be wrong about this: it is important that visas are extended automatically. I just do not think it is as easy as the Home Office thinks.

It may be that the Home Office believes it has used section 3(3)(a) of the Immigration Act 1971 to carry out the automatic extensions. This is the normal power used to extend visas where an application is made. The section is silent on any procedural requirement to give notice in writing or make an individual decision in an individual case. The relevant part just reads:

a person’s leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions

So far, so good. But the problem comes with section 4 of the Immigration Act 1971. This states that immigration officers give or refuse leave to enter and the Secretary of State, acting through officials at the Home Office, gives or refuses leave to remain. It goes on:

unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.

As far as I can see, no formal notice in writing has been given to the people concerned and no statutory instrument has been made. A notice on gov.uk surely does not qualify and I think the Immigration (Notices) Regulations 2003 apply here.

If my analysis is correct, those told that their visas have been extended have been (accidentally) misled. The notice on gov.uk has no legal effect. In reality, they have become overstayers and are now illegally resident.

As I say, I hope I am wrong. But it is very far from unknown for civil servants at the Home Office to get immigration law wrong.

As an aside, and far less worryingly, the Home Office purported only to extend the visas of those who had previously complied with the conditions of their visas. It is hard to understand how this can possibly be effective. 

I raise this now because we expect that the expiring visas of other migrants stuck in the UK will be automatically extended in the coming days. It is important that the Home Office gets this right in legal terms and that any such extension is legally valid.