COVID-19 EXPERT LEGAL INSIGHTS

UKVI coronavirus guidance: good news for those already with UK visas but no guidance for those in the process of applying for a UK visa

18 February 2020

Much anticipated UKVI guidance on the coronavirus has been published and it has sensibly set out a number of provisions for those who already hold a visa in the UK.  There is also the introduction of the UKVI coronavirus immigration helpline (free call: 0800 678 1767 Monday to Friday, 9am to 5pm), and an email address for queries not covered by this guidance. 


At first glance, the guidance is helpful but questions remain for those who may have pending applications in China and issues applicants may face in light of the coronavirus outbreak.

Here are some highlights from the guidance

  • Chinese nationals in the UK holding a UK visa with an expiry date between 24 January 2020 and 30 March 2020 will have their leave automatically extended to 31 March 2020, provided they have been compliant with the conditions of their leave prior to the coronavirus outbreak. No further steps need to be taken by the Chinese national and they won’t receive a new visa or a Biometric Residence Permit as the extension to 31 March 2020 will be automatically updated on the UKVI system.
  • Non-Chinese and non-EEA nationals who normally reside in China and hold a UK visa with an expiry date between 24 January 2020 and 30 March 2020 can call the coronavirus immigration helpline to ask for your visa to be extended to 31 March 2020. However, you will need to demonstrate you are normally resident in China – but how will this work in practice? Non-Chinese and non-EEA nationals living in China may have some type of Chinese residence permit or visa to demonstrate they are normally resident in China. Alternatively, tenancy agreements in China, household bills or an employment contract for a company in China could also help demonstrate this but there is no guidance in how to provide these documents to the UKVI. With most UK visa applications being digitally assessed through the uploading of supporting documents, it may well be that any supporting documents would need to be emailed to the UKVI. 
  • Chinese nationals in the UK with visas granted by the Irish authorities (such as the British Irish Visa Scheme) and by the Crown dependencies, have been asked to contact the coronavirus helpline to discuss your circumstances if the visa has an expiry date between 24 January 2020 and 30 March 2020.
  • Chinese nationals in the UK with a Tier 2 (Intra-Company Transfer) visa can apply to switch in-country to Tier 2 (General) leave from within the UK if their visa has an expiry between 24 January 2020 and 30 March 2020. This is an exception as the Immigration Rules prescribes that those who wish to switch in this manner would normally be required to submit this application from outside the UK.
  • With Visa Application Centres (VAC) all closed in China, it is not possible to request the return or arrange the delivery or collection of original documents submitted through the VAC. Therefore, applicants who have submitted an application in China, who may have their original passports still held at the VAC, have been advised to obtain an emergency travel document from their country’s consulate. Many countries have now set up special quarantine centres for anyone who has travelled from China so for those who are able to obtain emergency travel documents to leave China, it is likely that they will be subject to a quarantine on arrival at the destination country.
  • Sponsor licence holders of Tier 2, Tier 4 and Tier 5 categories have been advised that they do not need to report absences of students or employees if their absences have been authorised in relation to the coronavirus. This can be in relation to the prevention of attendance to work or studies due to illness and needing to serve a period of quarantine or inability to travel due to travel restrictions as a result of the coronavirus. This policy is in line with the FCO’s travel advice and information from the Department of Health and Social Care and Public Health England.

 

It is possible that the policy may be updated to reflect changes to the public health guidance and travel advice over the coming weeks but for now, there is some reassurance for those with UK visas in the UK, who are unable to return to China due to coronavirus and are facing the expiry of their visas. While these measures are good news for those who already hold UK visas, there are gaps in the policy to address issues faced by Chinese and non-Chinese nationals who are in the process of applying for a UK visa from China. Here we examine some of the gaps in the policy.

For applicants in China who have filed a UK visa application online but have not been able to attend a Visa Application Centre (VAC) in China due to its closure, they are now left in limbo. Typically, the application process requires applicants to submit their entry clearance applications online and subsequently book a biometric appointment at a VAC within a certain time period, usually 45 days. The guidance does not provide any measures for those with applications currently pending who have not been able to visit a VAC. The guidance indicates the Home Office are keeping the VAC closures under review but there is no suggestion on how these applications will be dealt with in the future if, for example, the applicant missed the 45 days to provide biometrics. It is possible that the UKVI may expect applicants to re-apply but it may be easier said than done, particularly if applicants need to obtain updated supporting documents, which may not be be accessible to them given the coronavirus is still affecting businesses in China. Also, depending on the delay, issues having to re-apply for those with Tier 2, Tier 4 or Tier 5 Certificates of Sponsorship could become problematic.

For applicants who have filed a UK visa application outside China but may have travelled to China during the lunar celebrations, there is no guidance on what would happen to these applicants if they cannot leave China to attend a VAC appointment. The system in place restricts applicants to attend a VAC in the country in which they submitted their application. For example, if an applicant submitted an application in Hong Kong but they are now in China and cannot leave, the system will not allow you to book a biometric appointment in China as it will only provide booking options for Hong Kong (and, in any event, VACs are not open in China). Again, it may be expected that applicants could re-apply if they pass the 45 day period but, as indicated above, the logistics of obtaining updated supporting documents and also dealing with refunds of an application and the associated costs (such as immigration health surcharges) may not be an easy process.

The FCO has brought back more than 100 UK nationals and family members from Wuhan and there are a small number of British families waiting to be repatriated from the Hubei province. However, for British nationals with non-UK family members who live in other parts of China, there are no provisions in place that would help fast track any family based applications under Appendix FM of the Immigration Rules. With the VAC closures, families of British nationals would remain in limbo until the VAC opens again.

Also, if there is now the exception for Tier 2 Intra-Company Transferees to switch to Tier 2 (General) from within the UK, a similar exception should be considered for Chinese spouses/partners of British citizens. The Immigration Rules currently do not allow a non-UK spouse/partner of a British citizen to apply from within the UK if the spouse/partner holds a UK visitor visa. So for a Chinese spouse/partner who is in the UK on a visitor visa, they would need to travel back to China to submit the visa application. In some exceptional circumstances (for example where there are British children involved), the spouse/partner may be able to apply from within the UK but this would put them on a 10 year track to settlement, rather than the usual five year track to indefinite leave to remain. This could be costly for families and, given the policy is providing exceptions for Tier 2 migrants, why could the same not apply for Chinese spouses/partners of British nationals or those with settled status?

At present, the policy mirrors the health and travel advice, particularly in relation to China. The policy does not cover nationals from the other affected countries – Thailand, Japan, Republic of Korea, Hong Kong, Taiwan, Singapore, Malaysia and Macau. While the extent of the coronavirus outbreak may not be as severe in these countries compared to China, for citizens of the other affected countries who may be wary of returning to their home country, the guidance does not currently cover for this. If the situation worsens, the policy may change to reflect public health policies and travel advice to these other affected countries. In any event, it is probable that the policy will be reviewed nearer the date of 31 March 2020, when leave granted through the automatic extension ends.

A dedicated email address CIH@homeoffice.gov.uk has been put in place for those with queries not covered by this guidance and individuals can also call the coronavirus immigration helpline, so we are yet to see how the Home Office will address the gaps in this guidance.

About the author

Jessica Jim is an associate in our immigration team with experience advising on all aspects of UK immigration, nationality and European matters. She has particular expertise in advising entrepreneurs and acts for many high net worth individuals and families, particularly those from the Asia-pacific region. Jessica is a fluent Cantonese speaker and speaks some Mandarin.

 

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