On 9 April 2024, the Home Office published new guidance for caseworkers handling immigration applications impacted by the Coronavirus Extension Concession (CEC) and Exceptional Assurance (EA) Concession. This guidance provides detailed instructions on how to evaluate applications for entry clearance, permission to stay, or settlement for individuals who benefitted from these concessions during the Covid-19 pandemic. It also clarifies how to account for periods where applicants had pending requests for exceptional assurance in settlement applications. This inaugural edition of the guidance aims to assist those whose immigration status was affected during the pandemic, specifically those who were unable to leave the UK due to travel restrictions or self-isolation requirements.
The guidance delineates two key periods during the pandemic: the Coronavirus Extension Concession (24 January 2020 to 31 July 2020, with a grace period until 31 August 2020) and the Exceptional Assurance Concession (1 September 2020 to 28 February 2023). By providing clarity on the application of these concessions, the guidance ensures that individuals are not penalised for overstaying due to circumstances beyond their control, thereby maintaining their eligibility for future immigration benefits.
In this post, we look at the specific provisions of the Coronavirus Extension Concession and the Exceptional Assurance Concession, illustrating their practical application through examples and examining how these policies impact subsequent settlement applications.
Coronavirus Extension Concession (CEC) and Exceptional Assurance Concession: Caseworker Guidance
The Coronavirus Extension Concession (CEC) and Exceptional Assurance Concession: Caseworker Guidance, published on 9 April 2024, guides caseworkers on how to consider applications for entry clearance, permission to stay or settlement following a grant of the Coronavirus Extension Concession (CEC) or the Exceptional Assurance (EA) Concession. Additionally, it tells caseworkers how to consider the time period where an applicant had a pending request for exceptional assurance in settlement applications. This is the first published version of the guidance.
The guidance provides further clarity to those who were affected during the pandemic. This is relevant to those individuals whose immigration status expired, or was due to expire, during the Covid-19 period and who found themselves in a position where they could not leave the UK.
The guidance acknowledges two phases of the policy during the Covid-19 pandemic:
- The Coronavirus Extension Concession period – 24 January 2020 to 31 July 2020 (with a grace period until 31 August 2020); and
- The Exceptional Assurance Concession period (including short term assurance) – 1 September 2020 to 28 February 2023.
Coronavirus Extension Concession Period With Grace Period
The Covid-19 pandemic was unprecedented and led to much confusion and concern for those who were already in the UK and planning to leave or for those planning to travel to the UK. Individuals were understandably concerned at becoming overstayers; the implications and the hostile environment that come with it. Policies were therefore implemented on an emergency basis.
There are differences between the two identified periods. The Coronavirus Extension Concession automatically extended the permission of individuals who were in the UK which would have expired between 4 January 2020 to 31 July 2020. The Home Secretary, relying on the Immigration Act 1971, has a residual discretion to extend leave outside of the Immigration Rules in certain exceptional circumstances. This concession therefore operated outside of the Immigration Rules.
The Concession recognised that as a result of the Covid-19 global travel restrictions and/or self isolation, some people who had permission were unable to leave when their permission expired. The Concession recognised that individuals would otherwise have become overstayers in unprecedented circumstances beyond their control.
The Concession ended on 31 July 2020. There followed a grace period between 1 August to 31 August 2020 This period was designed to allow individuals time to make their arrangements to leave the UK. It was clear that individuals enjoyed the same conditions of their previous leave during the relevant period and were not subject to the usual sanctions of overstayers.
The guidance reads:
"If their previous conditions allowed them to work, study or rent accommodation they could continue to do so during this grace period, ahead of leaving the UK."
Paragraph 39E of the Immigration Rules was amended in October 2020 in order that any overstaying between 24 January 2020 to 31 August 2020 be disregarded:
39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant's leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal or rejection of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal or rejection of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or
(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or
(3) the period of overstaying was between 24 January and 31 August 2020; or
(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021; or
(5) the period of overstaying:
(a) is between 1 September 2020 and 28 February 2023; and
(b) is covered by an exceptional assurance.
39F. 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.
The casework guidance reads:
"This means people who overstayed during this period would not be penalised for overstaying when the situation was out of their control due to Covid-19, and no immigration enforcement action would be undertaken for these individuals in relation to this overstaying. In accordance with Appendix Continuous Residence, periods covered by 39E do not break a person's continuous residence."
Time spent in the UK during this grace period is lawful for the purposes of subsequent settlement applications, where an applicant's leave expired immediately before, or during, the grace period, and does not break continuous residence. This is also reflected in Appendix Continuous Residence.
The guidance gives three examples of circumstances where this would apply, including the following:
"A student's permission expired on 31 March 2020, but they were unable to leave the UK on or before that date due to a combination of needing to self-isolate due to COVID illness, and global travel restrictions. The student left the UK on 25 August 2020, during the grace period. The student's visa/permission is considered to have been extended under the Coronavirus Extension Concession up to 31 July 2020. The time they spent in the UK during the grace period between 1 August 2020 to 25 August 2020 counts as lawful presence and counts toward the qualifying period in any subsequent applications for settlement."
Exceptional Assurance Concession
Exceptional assurance was introduced on 1 September 2020 as a further way of dealing with travel disruption caused by the pandemic. It followed the Coronavirus Extension Concession and the grace period which had by then come to an end.
The guidance summarises exceptional assurance:
"Exceptional assurance offered individuals a short-term protection against any adverse action or consequences after their permission had expired, where they were unable to leave the UK due to COVID-19."
An individual would request exceptional assurance by emailing the Home Office Coronavirus Immigration Team (CIT). It is important to note that exceptional assurance did not grant any form of immigration permission to individuals, it just resulted in protection from adverse consequences – current or future. If an individual was self-isolating as required, or there were travel restrictions in place an individual would be granted exceptional assurance for a period of ten weeks. If there were no travel restrictions or other reasons, the individual would be given a short-term period of assurance referred to as a short-term assurance, for a period of two weeks. The applicant received a letter confirming the specified date they could remain in the UK until. This allowed the applicant time to make arrangements and leave the UK.
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. It was possible for an individual to apply and be granted multiple consecutive exceptional assurances, between September 2020 and February 2023, until such a time that they were able to leave the UK.
Paragraph 39E(5) of the Immigration Rules was amended so that overstaying during periods where the person held an exceptional assurance or short-term assurance will be disregarded and will not break continuous residence.
The guidance provides two examples of how this is applied.
Relying on Exceptional Assurance or Short-term Assurance as a Qualifying Period
In contrast to the earlier position, it is important to note that an applicant cannot rely on any periods with exceptional assurance or short-term assurance to count towards the qualifying period for settlement on any route.
Further, exceptional assurance and permission extended by section 3C are distinct and different concepts. Section 3C is found in the Immigration Act 1971 and extends current permission where an in-time application is made, and the current permission expires without the application being decided.
Helpfully, the guidance confirms that "the time between an applicant's request for exceptional assurance being submitted and it being granted should be considered as if the applicant held exceptional assurance from the date of request."
Overstaying
If an individual has overstayed after the expiry of their exceptional assurance they will be considered in accordance with the guidance, Applications from overstayers, published on for Home Office staff on 05 August 2019.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.