Prior to today’s updated Guidance, a blog post of much earlier today enquired whether Home Office Covid- 19 Guidance as published on 29 May 2020, permits visiting partners of British citizens to switch into the family life partner route: https://ukimmigrationjusticewatch.com/2020/06/08/by-passing-entry-clearance-requirements-does-home-office-covid-19-guidance-permit-visiting-partners-of-british-citizens-to-switch-into-the-family-life-partner-route/

The conclusion within the blog post, despite what is provided for in Appendix FM and usual accompanying Guidance, was that a visitor should be able to switch into the family life route on the following basis:

“On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as to switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

………………

In the absence of  any category application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route…….. What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?”

 

The blog post concludes by suggesting on how best to proceed with an application under the family life route as a visitor.

The Home Office have today, 8 June 2020, updated their Covid-19 Guidance to confirm that up to 31 July 2020,  applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route:- Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents

The updated Guidance should therefore be read as published in context as follows:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2

You can apply online. The terms of your leave will remain the same until your application is decided.

……………………….

If you’re applying to enter the UK or remain on the basis of family or private life

There are temporary concessions in place if you’re unable to meet the requirements of the family Immigration Rules to enter or remain in the UK due to the coronavirus outbreak. Up to 31 July, applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route provided the requirements of the Immigration Rules are otherwise met. See If you’re applying to stay in the UK long-term.

If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked. You are expected to make your next application as soon as possible.

………………………………”

 

The switching concession as updated temporarily takes the sting out of the recently published Upper Tribunal decision in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020), 

The effect of Younas  has been considered in a recent blog post: https://ukimmigrationjusticewatch.com/2020/06/02/chikwamba-and-zambrano-cases-real-practical-effect-of-younas-is-erosion-and-dilution-of-provisions-underpinning-family-life-claims/

Younas recently concluded in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK), that as the appellant had leave as a visitor when she submitted  her application in 2016 and that leave continued by operation of section 3C of the Immigration Act 1971, she therefore did not satisfy the Immigration Rules, Appendix FM because she did not meet the eligibility immigration status requirement at E-LTRP.2.1.

Having regard to the updated Home Office Guidance, it appears that had Younas applied for leave to remain as a partner whilst holding a visitor visa relying on the Home office Covid-19 switching Concession, she would likely have been granted leave to remain by the Home Office in the first instance. The adverse credibility findings and inconsistencies that emerged in Younas seem to have largely come about during the course of oral evidence before an unyielding Upper Tribunal Panel following a Home Office refusal decision.

In essence, the current position is that those like Younas who sought to apply for leave to remain on the family life route pre Covid-19, whilst holding a visitor visa, are unlikely, having regard to the decision in the Upper Tribunal, to succeed under the Immigration Rules Appendix FM – unless the claim succeeds on exceptional circumstances outside the Rules.

Conversely, a visitor who arrived in the UK  two months ago, can on the basis of the concession, switch into the  family route and not have it held against them as contrary to their previously stated intention to return abroad at the end of their visit.

Without further clarificatory Guidance on the concession, it currently appears that a visitor can seek to purposively arrive in the UK before 31 July 2020, intently focused on relying on the published Guidance and then apply to switch into the family life route. The concession is welcome, however without further Guidance to cater for the gap, the Home Office appear to have left it wide open for new visitor arrivals, especially non -visa nationals, to legally circumvent the requirement to obtain  prior entry clearance as a partner of a British citizen or parent of a British citizen child and so legitimately apply for leave to remain whilst in the UK.