We asked the Home Office whether the Covid-19 concession to permit in-country switching where this is ordinarily prohibited requires applicants to meet the entry clearance rules or the in-country rules. The Home Office have now said:
Further to the query below in relation to which rules apply when people are using the in country switching concession, I can confirm that this will be the in-country rules given that the individual will be in the UK, the only rule that does not need to be met is that they need to apply for a visa from their home country. They will need to meet all other requirements of the route they are applying for and pay the UK application fee.
From: Keoghan Sally
Sent: 10 June 2020 08:49
To: Sonia Lenegan; Shirley George
Cc: Charles Bishop
Subject: RE: COVID Switching – EC or LTR rules?
Dear Sonia
Further to the query below in relation to which rules apply when people are using the in country switching concession, I can confirm that this will be the in-country rules given that the individual will be in the UK, the only rule that does not need to be met is that they need to apply for a visa from their home country. They will need to meet all other requirements of the route they are applying for and pay the UK application fee.
Kind regards
Sally
Sally Keoghan | Chief of Staff to George Shirley
V&C Directors Office (Sheffield) Home Office – UK Visas and Immigration
From: Sonia Lenegan
Sent: 10 June 2020 08:13
To: Shirley George
Cc: Charles Bishop; Keoghan Sally
Subject: Re: COVID Switching – EC or LTR rules?
Thanks Nick, there are a few outstanding queries now (including the one about adding client’s names to emails). We will ask George for responses to anything we haven’t had an email back on during our call tomorrow, I am just flagging this up now so he is aware and hopefully ready with the responses.
Kind regards,
Sonia Lenegan
Legal Director
From: Shirley George
Sent: 08 June 2020 14:37
To: Sonia Lenegan
Cc: Charles Bishop; Shirley George; Keoghan Sally
Subject: RE: COVID Switching – EC or LTR rules?
Hi Sonia,
Thank you for your email.
Please be assured that George has noted your query and will respond shortly.
Kind regards
Nick Smith
From: Sonia Lenegan
Sent: 08 June 2020 14:02
To: Shirley George; Keoghan Sally
Cc: Charles Bishop
Subject: COVID Switching – EC or LTR rules?
Dear George and Sally,
Please see the below query in relation to which rules apply when people are using the in country switching concession, I am sure there must be an answer to this somewhere as people will already have been using this concession for months, but I couldn’t find it. I would be grateful if you could let me know the position as soon as possible, and also if it is available on GOV.UK?
Kind regards,
Sonia Lenegan
Legal Director
From: John Vassiliou
Sent: 04 June 2020 11:06
To: Charles Bishop; Sonia Lenegan
Subject: COVID Switching
Morning
I’m trying to interpret the Home Office’s COVID visa switching concession and determine if they apply entry clearance or leave to remain rules to a switcher’s application. Despite lots of discussion about this on the google group, there is still no concrete confirmation that I have seen from the Home Office.
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 2020.
You can apply online. The terms of your leave will remain the same until your application is decided.
Specifically, does the highlighted passage mean that an applicant needs to meet the entry clearance rules while they are inside the UK, or just that the applicant must meet all of the in-country rules save for the rule that normally prohibits switching?
My view is it means visitors can avail themselves of the in-country leave to remain rules which normally prohibit visitors from applying – that’s implied by the requirement to pay the UK application fee as opposed to the overseas application fee. It would also require far more technical gymnastics to accept as valid an entry clearance application from somebody inside the UK seeking leave to enter – it would not be competent for the SSHD to issue leave to enter while the person is already in the country. But it’s just a view and if I’m wrong it will be costly.
The Home Office’s intended interpretation is significant in a parent of a British child case under Appendix FM I am trying to decide what to do with just now. The foreign parent is currently in the UK as a visitor. She has been living with and looking after her two British children since January and through lockdown. She is separated from and in the process of divorcing the children’s British father who does not live with them. Her visit visa expires on 2 July. If she makes a parent of a British child application from inside the UK and the entry clearance rules are applied to her case, her specific scenario would lead to refusal of the application (the eligibility requirement is that the applicant either has sole responsibility – she doesn’t – or that the children live with the British parent in the UK – they currently live with the foreign parent in the UK).
If the in-country leave to remain rules were applied to her in-country switching application however, she would succeed, because the in-country rules allow applications where the child normally lives with the foreign applicant and not the British parent.
If I make this application for her now under the COVID switching concession, will the Home Office apply the in-country LTR rules, discounting the immigration status requirement which normally operates to bar switching from a visitor visa (rule E-LTRPT.3.1.), or would the Home Office apply the out-of-country entry clearance rules which are different and would lead to her application being refused?