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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

COVID-19 and personal migration: what's new?

11 May 2021 Amna Ashraf Blog

In a previous blog from December 2020, I outlined some points of consideration when preparing a spousal extension application from within the UK. The COVID-19 policy issued by Home Office specifically for those affected by the pandemic has been updated since then. The fluid changes to policy, as well as travel prohibitions, mean that applicants continually struggle to keep up with the latest position. I have addressed some common questions below to help deal with the application process.

Can I switch from another visa to a spousal one from within the UK?

Yes if you hold a visa in excess of 6 months (or a fiancé visa for 6 months). For those here as a visitor, COVID-19 policy only allows you to do so if either one of the following applies to you:

  • your application is urgent, for example if you have a family emergency and cannot apply from outside the UK
  • you cannot apply from outside the UK due to coronavirus

Examples of the second reason could be due to travel ban in your country of origin and inability to travel (although this is now becoming increasingly difficult to argue as restrictions are being uplifted). It could also be health reasons such as being categorised as high risk, lack of vaccine availability in your country of origin, high infection rates in your country of origin or isolation due to being covid positive at the time of submission.

Where you hold a visitor status or a visa less than 6 months and no reasons are provided for why you are applying from within the UK, the application is likely to be refused.

What if I need more time to leave the country?

If your visa expires by 30 June 2021, and you have reasons for being unable to leave before then, you should apply for ‘exceptional assurance’ before expiry of your visa. The Home Office describe this as something which is not a visa extension but a ‘short-term protection against any adverse action or consequences after your leave has expired’.

The method of application is explained under ‘if you’re in the UK’ part of the COVID-19 policy. Essentially an email with required information and supporting evidence attached. There seems to be no barrier to a second exceptional assurance application as long as supporting evidence is provided.

What if I do not meet the financial requirements?

A couple of options:

  1. Rely on the COVID-19 policy which states that if income has been lost due to coronavirus up to 31 May 2021, then evidence of employment before loss of income can be submitted. This can help if someone earned above £18,600 for at least 6 months before they lost their income. It also helps those who are self-employed because a loss of annual income due to coronavirus between 1 March 2020 and 31 May 2021 will usually be disregarded.
  1. If income was still short before loss due to coronavirus and present income just needs more time (e.g. job held for 4 months and 2 further months are required) then applying for exceptional assurance to complete the required time may be an option provided supporting evidence for inability to return is also provided.
  1. If there is no evidence of inability to return to the country of origin, then returning home to await further time until the financial rules are met may be the way to go.
  1. There is always the pre-covid rule relating to family life which can be relied upon. This is under section EX within Appendix FM to the Immigration Rules. It is either based on the child or the partner.

If relying on the child, you have to show that the applicant has a genuine and subsisting parental relationship with a qualifying child and taking the best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK. A qualifying child is someone who is:

  • under the age of 18 years (or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied)
  • in the UK
  • is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application

If relying on the partner, you have to show that the applicant has a genuine and subsisting relationship with a qualifying partner and there would be ‘very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner’. A qualifying partner is someone who is any one of the following:

  • British Citizen in the UK
  • settled in the UK
  • in the UK with refugee leave or humanitarian protection
  • EEA national in the UK who holds 5 years limited leave
  • in the UK with limited leave as a worker or business person under Appendix ECAA

How quickly will I get my decision?

An application for extension of leave under the family route can either be decided under the standard service or the super priority one.

The standard service usually takes up to 6 months but can take even longer during the present times.

The super priority one aims to take 24 hours from the date of biometrics. Any I have submitted under super priority have actually received their decisions within the promised timescale of 24 hours. It does however cost £800 more than the usual fee and is not always available when you submit the application. If anyone is keen to avail it, then the trick seems to be to try submit at different hours of the day (and night) and ensure you don’t leave it to the final day before expiry.

About to submit but need help?

Contact our firm using the contact us page for a consultation meeting. We can guild you over a meeting or take over your case to ensure it is submitted with the highest chances of success. I can also be contacted directly by email.

 

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