Dhasarathan Seerangan v Secretary of State for the Home Department [2025] EWCA Civ 354

[2025] EWCA Civ 354Case No CA-2024-001080
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
MRS JUSTICE THORNTON
JR-2023-LON-001221
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/03/2025
Before
LORD JUSTICE UNDERHILL(Vice-President of the Court of Appeal (Civil Division))LORD JUSTICE DINGEMANSLADY JUSTICE FALK
Between
THE KING (ON THE APPLICATION OF DHASARATHAN SEERANGAN)Applicant/SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Zane Malik KC and Shivani Jegarajah (instructed by KT Solicitors) for AppellantJack Holborn (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 15 January 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 28 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

INTRODUCTION

[1]The facts giving rise to the present proceedings can be summarised for introductory purposes as follows:(1) The Appellant is an Indian national. He came to the UK on 3 October 2020, during the Covid-19 pandemic, on a student visa expiring on 30 January 2022. He did not leave at the expiry of his visa and accordingly became an overstayer.(2) On 14 November 2022, over nine months later, he requested from UK Visas and Immigration (“UKVI”) an “exceptional assurance” (an “EA”), relying on the Home Office’s “Coronavirus Exceptional Assurance policy” (“the EA Policy”). I will have to say more about the purpose and effect of the EA Policy in due course; but in very broad terms its purpose was to afford a level of protection to non-UK nationals who were unable to leave the UK when their visas expired as a result of travel restrictions due to the pandemic.(3) By letter from UKVI dated 16 November 2022 (“the UKVI letter”) he was told that he did not qualify under the terms of the EA Policy but that he would be given a “short-term assurance” expiring on 30 November.(4) On 29 November 2022, the day before the expiry of that assurance, he applied to the Home Office for leave to remain as a Tier 2 skilled worker under the Skilled Worker Appendix to the Immigration Rules.(5) By letter dated 19 December 2022 that application was refused, and the refusal was subsequently maintained on an administrative review. The letter did not properly articulate the grounds for refusal, but it is now common ground that the true basis was that the Appellant was at the time of his application an overstayer.[2]It is the Appellant’s case that the effect of the EA Policy and/or the assurance given in the UKVI letter is that he should not have been treated as an overstayer at the date that he made his skilled worker application. He brought proceedings for judicial review of the refusal decision against the Respondent, the Secretary of State for the Home Department. By a judgment dated 16 April 2024 Thornton J, sitting as a judge of the Upper Tribunal (Immigration and Asylum Chamber), dismissed his claim.[3]This is the Appellant’s appeal, with permission granted by Dingemans LJ. He has been represented before us by Mr Zane Malik KC leading Ms Shivani Jegarajah. The Secretary of State has been represented by Mr Jack Holborn.[4]We were told that a number of other cases raising similar questions about the effect of the EA Policy have been stayed in the Upper Tribunal, and that there are likewise a number of applications for permission to appeal pending in this Court.

THE RELEVANT PROVISIONS OF THE IMMIGRATION RULES

[5]Paragraphs SW2.1 and2.2 of the Skilled Worker Appendix are under the heading “Suitability requirements for a skilled worker”. They read:
“SW 2.1 The applicant must not fall for refusal under Part 9: grounds for refusal. SW 2.2 If applying for permission to stay the applicant must not be: (a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or (b) on immigration bail.”

SW 2.2 If applying for permission to stay the applicant must not be:

[6]The term “breach of immigration laws” is defined in paragraph 6.2 of the Immigration Rules as follows:
“‘Breach of immigration laws’ – a person is in breach of immigration laws for the purpose of these rules where the person is an overstayer; is an illegal entrant; is in breach of a condition of their permission; or used deception in relation to their most recent application for entry clearance or permission; and ‘previously breached immigration laws’ – a person previously breached immigration laws if they overstayed or used deception in relation to a previous application for entry clearance or permission.” “Overstayer” as such is not a defined term, but its meaning clearly appears from the definition of “overstayed” or “overstaying” in the same paragraph, which reads as follows: “‘Overstayed’ or ‘overstaying’ means the person has stayed in the UK beyond the latest of: (a) The time limit attached to the last permission granted; or (b) The period that the permission was extended under section 3C or 3D of the Immigration Act 1971.” “‘Overstayed’ or ‘overstaying’ means the person has stayed in the UK beyond the latest of: (a) The time limit attached to the last permission granted; or (b) The period that the permission was extended under section 3C or 3D of the Immigration Act 1971.”
[7]Paragraph 39E of the Rules, referred to in paragraph SW 2.2, identifies certain circumstances in which periods of overstaying may be disregarded, typically for no more than 14 days. None of those circumstances is applicable in the present case.[8]It is the Secretary of State’s case that she was right to reject the Appellant’s skilled worker application because at the time of his application he had no leave to remain and was thus an overstayer and in breach of immigration laws and so fell foul of paragraph SW 2.2 (a). THE EA POLICY THE TERMS OF THE POLICY

THE EA POLICY

[9]The history of the Secretary of State’s policy as regards non-UK nationals who were prevented by the pandemic from returning home on the expiry of their visas is explained in a witness statement from George Shirley, the Director of Asylum and Human Rights Operations at the Home Office. The policy was first set out in guidance entitled Coronavirus (COVID-19): Immigration guidance (“the Guidance”). The Guidance went through a number of versions, with varying names, responding to the developing situation. There were two distinct phases: - The first phase ran from 24 January to 31 July 2020, with a grace period until 31 August 2020. During this phase, which coincided broadly speaking with the global closure of borders, UKVI issued automatic extensions to visas; and a general disregard of overstaying between those dates was provided for by an amendment to paragraph 39E of the Rules. - The second phase ran from 1 September 2020 to 30 November 2022 and was first reflected in the fourth version of the Guidance, published on 24 August 2020 at a time when travel restrictions were starting to lift globally. The Home Office no longer issued automatic extensions to visas but instead adopted the EA Policy, under which what were described as “exceptional assurances” were given to individuals in prescribed circumstances.[10]The version of the Guidance in force at the time of the assurance on which the Appellant relies was issued on 2 November 2022, now titled Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents. The relevant parts read as follows (I have added paragraph numbers, and letters for the section titles, for ease of reference): “[A]If you’re in the UK [1] You are expected to take all reasonable steps to leave the UK where it is possible to do so or apply to regularise your stay in the UK. You are allowed to access Visa and Immigration services as these are considered an essential public service. You must follow current COVID-19 rules for where you live. [The Guidance then gives a series of web addresses setting out those rules for England, Scotland, Wales and Northern Ireland.] [2] If you intend to leave the UK to return to a country or territory but have not been able to do so and you have a visa, leave or ‘exceptional assurance’ that expires before 30 November 2022 you may request additional time to stay, known as ‘exceptional assurance’. [3] Exceptional cases could include where you may be unable to return to a country or territory you are resident in, as that nation has closed their borders or where quarantine facilities are temporarily over-subscribed. [4] Please submit your request for an ‘exceptional assurance’ by emailing cihassuranceteam@homeoffice.gov.uk with the following details:• full name• date of birth• nationality• Home Office, GWF or any other reference number• type of visa• expiry date of visa• reason for request• evidence showing reason you can’t leave. [5] The subject header of your email should read ‘Request for an assurance’. [6] In your email you should attach evidence to show why you cannot leave the UK. For example, evidence of your inability to book quarantine accommodation in your country of residence. [7] During the time in which your request for ‘exceptional assurance’ is pending you will continue on the conditions as per your current or most recently expired visa. [8] If you are granted ‘exceptional assurance’ it will act as a short-term protection against any adverse action or consequences after your leave has expired. If conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your ‘exceptional assurance’. ‘Exceptional assurance’ does not grant you leave. It is a means to protect those who are unable to leave the UK due to COVID-19 restrictions and not to facilitate travel, other than to return home. [9] If you’ve already been given assurance but your circumstances have changed or you’re unable to leave the UK by the assurance date previously given, you must reapply using the process above. You will need to clearly state that you’re making a subsequent application. You’ll be asked to provide new supporting evidence. [B] If you intend to stay in the UK [10] In order to remain in the UK, you will need to apply for the relevant permission to stay. Where eligible, you’ll be able to submit a permission to stay application form from within the UK. [11] You can make an application for permission to stay in the UK if you hold permission in a route that would normally allow you to do so. [12] You’ll need to meet the requirements of the route you’re applying for and pay the UK application fee. You will not be able to apply for a route for which there is no provision in the Immigration Rules for making an in-country application, such as Youth Mobility Scheme, or Adult Dependant [sic] Relative. [13] The terms of your current permission will remain the same until your application is decided. If you are switching into work … or study … routes you may be able to commence work or study whilst your application is under consideration, depending on the terms of your current permission. [14] You are also able to apply for permission to stay to remain [sic] in the UK if you have been issued with an ‘exceptional assurance’. You must submit your application before the expiry of your ‘exceptional assurance’. [C] If you have overstayed your leave [15] If your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. However, if you have not applied to regularise your stay or submitted a request for an exceptional assurance you must make arrangements to leave the UK.” [B] If you intend to stay in the UK

[C] If you have overstayed your leave

[11]The core of the EA Policy appears in section [A], but sections [B] and [C] are also relevant. I will take those sections in turn.

Section [A]

[12]I can ignore para. [1], which is essentially prefatory. The effect of paras. [2]-[9] can be analysed as follows.[13]The primary substantive provision governing the circumstances in which EA will be granted is para. [2], though it has to be read with para. [3]. This provides for the grant of an EA to persons(a) whose immigration status is currently covered I use the non-technical term “cover” because an EA is not equivalent to a grant of leave to remain (see para. 16 below). either(i) by leave to remain or (ii) by an EA previously granted following the expiry of an earlier period of leave; but(b) whose cover is due to expire before 30 November 2022; and(c) who are unable to return to their home country, for example because the borders remain closed because of the pandemic (see para. [3]).[14]Paras. [4]-[6] set out the procedure for making the necessary “request” for an EA. It is not referred to as an “application”, presumably because it was thought that that might connote an application for leave of some kind Though the terminology is not quite consistent: see para. [9]. ; but for convenience I will refer to a person making such a request as an applicant. The last two bullets under para. [4] show that an applicant was obliged to provide evidence of the restrictions on return on which they relied. The process was evidently managed by a specialist unit, who would be aware of, or in any event readily able to check, the restrictions currently applying in the country in question.[15]Para. [7] provides that while the request is pending the conditions of “your current or most recently expired visa” will continue to apply. The “conditions” in question are conditions of the kind which the Secretary of State is empowered by section 3 (1) (c) of the Immigration Act 1971 to impose on the grant of leave to enter or remain, covering such things as entitlement to work and restrictions on access to public funds. The reference to “your most recently expired visa” covers those cases where the applicant has an EA rather than a current visa: they will of course by definition have been granted that EA (or an earlier one of which it is a renewal – see below) on the expiry of a visa.[16]Para. [8] explains the effect of an EA. Importantly, it is not a grant of leave, from which it follows that the beneficiary necessarily remains an overstayer within the meaning of the Rules. Rather, it is “a short-term protection against any adverse action or consequences” which they would otherwise suffer as an overstayer (first sentence) and a continuation of the rights conferred by the terms of the relevant leave prior to its expiry (second sentence). Precisely what “adverse action or consequences” are protected against, and how, is not spelt out, but they would no doubt include enforcement action or penalisation for exercising the rights recognised by their visa conditions. Mr Malik described the effect of an EA as granting a period of “permitted stay” (a phrase taken from Mr Shirley’s witness statement). The paragraph does not specify what constitutes “short-term”, but Mr Shirley’s evidence was that the practice was to a grant an EA covering a period of ten weeks (see para. 33 below).[17]Para. [9] makes clear that if a migrant is still unable to leave at the end of that period, they would need to request a further EA under para. [9]. I will refer to that as “renewing” their EA, though the label may not be quite accurate.[18]I will in this judgment refer to persons who have obtained EAs in accordance with those paragraphs as having “regularised” their position. I appreciate that that term is in most contexts (including in paras. [1] and [15] of the EA Policy itself) used to refer only to obtaining leave to remain, which the grant of an EA explicitly does not constitute (see para. 16 above). But applicants with EAs have in a broader sense regularised their position, because they have taken the steps prescribed by the Secretary of State in the special situation created by the pandemic. I have not been able to come up with a more appropriate term, and this usage should not cause a problem in this very particular context.[19]For reasons that will become clear, it is important to note that the EA Policy as set out in the Guidance does not provide for the grant of any temporary or transitional protection for persons who have requested an EA but have been refused. As explained below, it was in fact the Secretary of State’s practice to grant a two-week “short-term” assurance in such cases (which was the kind of assurance granted to the Appellant); but that is not part of the published Policy.

Section [B]

[20]In contrast to section [A], which is concerned with people whose leave is about to expire and who wish to go home, section [B] is concerned with people who want to stay in the UK on one of the recognised bases but need to extend their leave to remain.[21]Paras. [10]-[13] do not appear to modify general immigration practice, since they simply state that people with leave to remain are entitled to apply for further leave These paragraphs refer to “permission to stay”, but I understand that in this context that is simply a more accessible term for leave to remain. by one of the permitted routes and identify some aspects of the process; but presumably it was thought that it was a useful exercise to cover all the options open to people finding themselves in the UK during the pandemic.[22]Para. [14], however, is directed to persons without current leave to remain but with a current EA. Since (as will appear) the Appellant was not granted an EA under the EA Policy, strictly we do not need to decide what its effect is, but since the position under the Policy is an important part of the background I should express my view. Read literally, para. [14] is simply a statement that persons without current leave to remain but with a current EA are “able to” make an application for leave to remain in the UK, without saying anything about the outcome. But since under the Immigration Rules any application by one of the usual routes would be bound to fail because they had no leave I ignore for these purposes the operation of paragraph 39E, which would in practice afford them a two-week grace period following the expiry of their leave. , the statement only makes sense if it means that a person with an EA will be treated as if they had leave to remain – that is, as if they were not overstayers. To put it another way, it means that their current overstaying is to be disregarded as long as the entire period since the expiry of their visa is covered by an EA granted under the Policy: the disregard would be outside the Rules, but the Secretary of State has power to waive compliance. That gives a benefit over and above the purely protective effect of section [A], but it is understandable that the Secretary of State would be prepared to extend such a benefit to persons with an EA, who will by definition have established that they were genuinely unable to leave the UK on the expiry of their visa and who have acted responsibly by taking advantage of the process made available to regularise their position.

Section [C]

[23]Section [C] consists only of para. [15] and is addressed to overstayers. We are not concerned with the first sentence, which refers to people who became overstayers during the first phase of the policy, i.e. up to 31 August 2020. The second sentence deals with people who overstay thereafter. Its effect is to distinguish between those who have applied to regularise their position (in my sense – see para. 18 above), who are not required to leave pending a decision and those who have not, who have no rights under the Policy and are required to leave the UK. That makes it clear that people who have not sought an EA for periods after 31 August 2020 are simply overstayers and have no protection under the EA Policy.

OVERVIEW

[24]A useful way to summarise the scope of the EA Policy, as it appears from that review, is that it makes a fundamental distinction between regularised and unregularised overstaying (in the sense explained at para. 18 above). Regularised overstayers are those who had applied for an EA by the time that their visa first expired and renewed it if necessary thereafter; and unregularised overstayers are those who did not. The Policy makes it clear that both remain overstayers within the meaning of the Rules (see para. 16 above), but where the overstaying has been regularised it provides for both(a) protection against the usual consequences of overstaying (section [A]) and(b) a disregard of the period of overstaying for the purpose of an application for leave to remain made during the currency of the EA (section [B]). Where it has not been regularised the overstayer has no protection.[25]Mr Malik did not accept that analysis. He submitted that the EA Policy extended to all non-UK nationals whose visas had expired since the start of the pandemic and who had been unable to return home, whether or not they had regularised their position by obtaining an EA when their visa first expired. He said that that was evident from the phrase in para. [7] “current or most recently expired visa”, which only made sense if the request could be made by someone who was already an overstayer. He said that it will have been apparent to the Secretary of State that many people would, in the difficult circumstances of the pandemic, have failed to regularise their positions; and it was to be expected that she would have a policy which would, by the belated grant of an EA, not only protect them from “adverse action or consequences” but also allow them to make applications for leave to remain despite having overstayed. He rebutted Mr Holborn’s characterisation of such a policy as amounting to a general amnesty: a late-applying applicant would still have to show that at all times up to and including the moment of request they had been and were unable to return home.[26]That submission is in my view inconsistent with the explicit terms of the EA Policy. It is clear from the language of para. [2] that EAs are only to be granted to migrants who at the time of their request are covered by leave or by an earlier EA: the condition is that “you have a visa, leave or ‘exceptional assurance’ that expires before 30 November 2022”. That condition necessarily excludes a person who has overstayed at any point since the expiry of their last visa, since they would not then have qualified for an EA. The use of the term “most recently expired visa” is not in any way inconsistent with that reading: see para. 15 above.[27]There is nothing surprising about that being the position. The Secretary of State did indeed set up a process to protect people who were unable to return home when their visas expired; but it extended only to those who took steps to regularise their position by requesting an EA at that point and renewing it thereafter if they remained unable to return home. That constituted an orderly process under which applicants would be required to satisfy UKVI on the occasion of each request that they were indeed unable to return home. It is also consistent with para. [9] of the EA Policy. Allowing an overstayer who had not regularised their position at the start to emerge months or years later and be treated as if they had never overstayed would render that process futile. It would also create real practical difficulties. Even if the late-applying overstayer claimed that throughout the intervening period they had been unable to return home, the exercise involved in UKVI checking historic information of that kind would be very different from a simple check of the position as at the date of each request.[28]Mr Malik advanced a further argument based on the terms of the UKVI letter. It is more convenient to deal with it in that context, but it will appear from para. 47 below that I believe that it is ill-founded.

APPLICATION TO THE APPELLANT’S CASE

[29]Applying that distinction, the Appellant was an unregularised overstayer and not entitled to an EA under the EA Policy. When his visa expired at the end of January 2022, he had not sought to regularise his position by applying for an EA: he had simply stayed on for another nine months. He had at the time of his request in mid-November neither a current visa nor the benefit of an existing EA, as required by para. [2] of the Policy. THE UKVI LETTER THE ISSUE

THE UKVI LETTER

[30]As already indicated, the Appellant’s case is founded on the terms of a “short-term assurance” contained in the UKVI letter, part of the effect of which is said to be that he would not be treated an overstayer for the purpose of an application for leave to remain made during its currency. Mr Malik’s primary contention was that in this regard the letter simply gave effect to the terms of the EA Policy. But if, as I would hold, the Policy does not apply to the Appellant, Mr Malik submitted that he was nevertheless entitled to rely on the assurance because it gave rise to an enforceable legitimate expectation. The most recent and authoritative statement of the relevant principle is in the decision of the Supreme Court in Re Finucane [2019] UKSC 7, [2019] 3 All ER 191. At para. 62 of his judgment (with which the other members of the Court agreed) Lord Kerr said:
“From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.”
[31]Mr Holborn accepted that the principle stated in that passage was applicable in the present case, and he did not advance any separate point on fairness, whether by reference to detrimental reliance or otherwise. Accordingly the dispositive question in this appeal is whether the UKVI letter contains a clear and unambiguous undertaking that the Appellant would not be treated as an overstayer for the purpose of any application for leave to remain which he made during the currency of the assurance given in it.[32]I consider the terms of the UKVI letter, including the assurance in question, below; but before I do so I need to identify the Secretary of State’s evidence about “short-term assurances” generally and also to summarise the request to which the UKVI letter was a response. “SHORT-TERM ASSURANCES”[33]At paras. 16-17 of his witness statement Mr Shirley explained the basis on which UKVI gave “short-term assurances” of the kind on which the Appellant relies. Para. 16 reads:
“Where there were travel restrictions in place a person would be granted exceptional assurance for ten weeks. If there were no restrictions, they would be given a short term period of exceptional assurance referred to as short term assurance, of two weeks. So potentially an individual could be given a ten-week EA when restrictions [sic] Something has gone wrong with the drafting here: presumably some such words as “were in place” are missing. , followed by a two-week short-term assurance so that no enforcement action was taken whilst the individual made arrangements to depart the UK.”
Mr Shirley there distinguishes between two different kinds of assurance, both of which he refers to as an “exceptional assurance”, one providing cover for ten weeks and the other only for two. More detail is given about the second in para. 17, which reads:
“Where an individual did not qualify for exceptional assurance, for example because their home country did not have restrictions on travel, the Home Office gave the individual a short period of time to organise their return flights, and so granted them a ‘short term assurance’ as a short period of exceptional assurance, normally of two weeks in length.”
It seems clear, though the repetition is clumsy, that the two-week assurance referred to in para. 17 is the same as that referred to in the second sentence of para. 16. Again, it is expressly referred to as an “exceptional assurance”.[34]Thus, in addition to the policy of granting what I will call a “full EA” to qualifying applicants, UKVI had an unpublished policy, not set out in the Guidance, of granting a two-week “short-term EA” to non-qualifying applicants This phrase is a shorthand for Mr Shirley’s reference in para. 17 to the short-term EA being granted “where an individual did not qualify for exceptional assurance”. Para. 16 says only “if there were no restrictions”; but it is clear from para. 17 that that is only an example of non-qualification. , in order to give them time to leave the UK. The label “short-term” is potentially confusing, because the full, ten-week, EA is itself described in para. [8] of the Policy as granting “short-term protection”; but I will have to use it because it features in the UKVI letter.[35]A further complication is that it appears from the third sentence of para. 16 of Mr Shirley’s statement that a short-term assurance may be granted not only to non-qualifying applicants but also to qualifying applicants as an add-on at the end of their full EA. I find that rather puzzling, but we are not concerned with this kind of short-term assurance, and I ignore it in what follows.

THE APPELLANT’S REQUEST FOR AN EXCEPTIONAL ASSURANCE

[36]The Appellant’s request for an EA was made in a letter from his solicitors, KT Solicitors Ltd (“KT”) dated 14 November 2022. The letter is loosely expressed. One notable point is that it does not at any point refer to the Guidance or indeed say anything that suggests that the writer had considered its terms or was even aware of it. The essential points are as follows.[37]The introductory paragraph reads:
“Our client wishes to apply for Exceptional Assurance for 14 days to regularise his stay to avoid being an overstayer in the UK.”
It is not clear why the writer specified a period of 14 days. As we have seen, there is no reference to such a period in the EA Policy itself. Presumably they were aware from some other source of UKVI’s practice of granting short-term assurances.[38]The next paragraph begins:
“Our client was unable to travel back to India due to Covid.”
The use of the past tense is important. It refers not to the position at the date of the request but to the position at the date that the visa expired, and it is common ground that at the date of the letter there were no restrictions preventing the Appellant’s return to India. (There is no evidence about for how long that had been the case.)[39]The letter then proceeds, in that paragraph and the next, to refer to the impact of Covid restrictions both on the Appellant’s position in the UK and on the possibility of his returning to India. It does so in very general terms. Among other things, although it gives the date that he first came to the UK it does not identify the date at which his leave expired or explain precisely what restrictions prevented him from returning to India at that point.[40]The next paragraph asks for the Appellant’s request for an EA to be favourably considered “in all the circumstances” and says that it would be “unjust for our client if he is denied leave under this policy”. The only circumstances referred to in the paragraph are that he had been in the UK for two years, would not have recourse to public funds and was “a law-abiding individual contributing positively to society”, but no doubt the reference includes the matters mentioned in the previous paragraph.[41]The final substantive paragraph of the letter reads:
“Our client informs [sic] that he has found a prospective employer who is happy to employ him. Unfortunately, due to our client’s current immigration status they cannot employ him. The Covid 19 restrictions has affected the client’s lawful status in the UK as he is now classed as an overstayer. The client says that the situation has now changed, and he wishes to return to India in order to make a fresh application for leave to enter the UK. However, such an application is likely to be refused if he is classed as an overstayer in the UK.”
[42]It seems clear that KT were proceeding on the understanding that the EA Policy was some kind of broad compassionate policy for the assistance of any overstayer currently in the UK who had at some point in the past been unable to return home because of the pandemic to obtain an EA and who now wanted to apply for leave to remain. It is unnecessary to enumerate all the ways in which that was a misunderstanding. I need only point to two fundamental reasons why the request for an EA was hopeless. First, it does not state (and it was not the case) that the Appellant was currently unable to return to India. Second, it does not state (and it was not the case) that he currently had either leave to remain or the benefit of an existing EA. I would also point out that although the letter says that the Appellant wanted the EA for the purpose of an application for leave to enter which he proposed to make following a return to India, the application which he subsequently in fact made was made in the UK for leave to remain.

THE LETTER

[43]The UKVI letter is dated 16 November 2022. I should reproduce it in full. It is headed “Confirmation of Exceptional Assurance”. The text reads as follows (again I have inserted paragraph numbers for ease of reference Doing so accentuates theodd paragraphing of [2]–[3],but I have thought it best not to interfere. ):
“[1] Thank you for contacting the Coronavirus Exceptional Assurance Team. [2] The exceptional assurance policy as outlined at Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents – GOV.UK (www.gov.uk) [3] States that ‘if you intend to leave the UK to return to a country or territory but have not been able to do so and you have a visa, leave or ‘exceptional assurance’ that expires before 30 November 2022 you may request additional time to stay, known as ‘exceptional assurance’. [4] Exceptional cases could include where you may be unable to return to a country or territory you are resident in, as that nation has closed their borders or where quarantine facilities are temporarily over-subscribed. [5] We have reviewed the circumstances of your case, the Country you are returning to has no reported travel restrictions or exceptions in place such as border closures or oversubscribed quarantine facilities restricting you from leaving the UK. [6] The exceptional assurance policy is a short-term protection against any enforcement action for overstaying leave, visa, or previous exceptional assurance due to travel restrictions caused by the pandemic. [7] As the reasons for your request are not in line with the exceptional assurance policy, we have issued you a short-term assurance until 30 November 2022 to allow you time to schedule a flight to leave the UK or submit an application of leave if you intend to stay for reasons not covered by the exceptional assurance policy. [8] Information on different visa categories can be found here: Browse: Visa and immigration - GOV.UK (www.gov.uk) [9] If you require further assistance with the application process or help in deciding which visa you may be eligible for, you may wish to seek advice from an Office of the Immigration Services Commissioner (OISC) regulated Immigration Adviser. A list of these advisers can be found here: https://www.gov.uk/find-an-immigration-adviser. [10] You will not be issued any further exceptional assurances unless new travel restrictions are imposed such as the country you are returning to closes its borders or there is a lack of quarantine facilities. [11] You must now make plans to leave the UK or make a new application on or before the expiry of your current leave or exceptional assurance, as you may not be exempt from any immigration enforcement action. You may also be regarded as an overstayer which could be detrimental to any future applications you may wish to make. [12] Your immigration record has been updated to reflect this and you will remain on the same terms and conditions as your previous grant of leave. If the conditions of your previous grant of leave allowed you to work, study or rent accommodation then you are able to continue on those conditions until the expiry of your assurance as detailed above. Please note that this is not an extension of your leave. [13] During this time, you will not be regarded as an overstayer or suffer any detriment in any future applications. However, you must make plans to leave the UK prior to the date that your current leave or assurance expires. If you do not leave on or before this date, you may be classed as an overstayer. [14] Please continue to check the GOV.UK webpages, as this is where updated advice will be published. [The relevant web addresses are given.]”
[44]That letter evidently follows a standard template, which I suspect is itself one of a group of templates which may share similar boilerplate provisions. Perhaps partly for that reason, it is not well drafted: the sequence of paragraphs is not easy to follow and there are elements which are, as we will see, unclear or repetitious. Also for that reason, it does not refer at all to the contents of KT’s letter. The decision-maker has apparently simply identified that the Appellant is an Indian national and, having ascertained that there are no restrictions preventing his return to India, has used the appropriate standard wording for a refusal on that basis without addressing any other possible problems with the request.[45]I turn to review the contents of the letter, addressing some particular points about its meaning and effect but without at this stage considering the ultimate issue that we have to determine. It can be analysed in three parts.[46]First, paras. [2]-[6], read with the first words of para. [7], decide that the Appellant is not entitled to an EA under the EA Policy. The actual phrase used in para. [7] is that “the reasons for your request are not in line with [the Policy]”. That is straightforwardly because there are no restrictions on return to India: see paras. [4]-[6].[47]It is convenient to deal at this point with Mr Malik’s argument that the terms of the UKVI letter shed light on the meaning of the EA Policy (see para. 28 above). He submitted that the fact that the letter relies only on the absence of any current travel restrictions is a clear indication that the Policy makes no distinction between regularised and unregularised overstayers. It was clear from KT’s letter that the Appellant had no current leave to remain or EA, and if that were a reason for refusing his claim the letter would have said so. I do not agree. As I have said, the caseworker has evidently simply used the appropriate standard wording for a request which does not qualify under the Policy because there was no longer any pandemic-related obstacle to the applicant’s return. That can shed no useful light on the meaning of the Policy.[48]Second, notwithstanding the decision that the Appellant does not qualify for a full EA under the EA Policy, para. [7] confers a “short-term assurance” in accordance with the unpublished policy described by Mr Shirley. It describes the purpose of the assurance as being “to allow you time to schedule a flight to leave the UK or submit an application of leave if you intend to stay for reasons not covered by the exceptional assurance policy”. The first of those reasons is in line with Mr Shirley’s evidence, but the second (which I have italicised) is not. It clearly envisages the possibility of the beneficiary of the assurance applying for leave to remain of some kind, and paras. [8]-[9], which give general information about applying for a visa, presumably follow for that reason.[49]Mr Malik pointed out that, although para. [7] does not itself use the phrase “exceptional assurance”, the title to the letter is “Confirmation of Exceptional Assurance”, and Mr Shirley himself treated short-term assurances of the type granted by it as a form of EA (see para. 33 above). That is a fair point, and I do not think significance can be attached to the fact that in para. [7] the assurance is not expressly labelled an EA. However, as Mr Holborn emphasised, it is equally true that para. [7] makes it clear that the assurance is not granted under the EA Policy, and it cannot be assumed that a short-term assurance, whether or not regarded as a species of EA, has all the same consequences and effect as a full EA under that Policy. Ultimately we have to consider the terms of the letter as a whole, read in the light of the Policy and any other relevant contextual considerations, in order to decide what the (clear and unambiguous) content of the assurance was.[50]Third, paras. [10]-[14] deal with, broadly, the effect and consequences of a grant of EA. They are evidently standard provisions, included to cover both the case where a full EA is granted and the case where it is refused and only a short-term assurance is given. Nothing turns on paras. [10] or [14], but I should address paras. [11]-[13].[51]Para. [11]. The primary purpose of para. [11] is to encourage compliance with the immigration rules by pointing out the consequences for the grantee of the EA It in fact refers to “expiry of your current leave or exceptional assurance”. This is puzzling because the only relevant expiry will be of the EA, which by definition will extend beyond any current (albeit soon-to-expire) leave which the grantee may enjoy. But redundancies of this kind are not uncommon with boiler-plate provisions. if they do not leave the UK, or make a new application, before the expiry of their EA, namely that they will at that point be liable to enforcement action (first sentence) or face problems with any future applications because they will be treated as overstayers (second sentence). In this context the phrase “future applications” appears to refer to applications for leave to enter made after the EA has expired and the grantee has left the country, and it is accordingly of no assistance for our purposes. The more relevant point, however, is that, like para. [7], the first sentence envisages the grantee making an application for leave to remain during the currency of the EA.[52]Para. [12].The first point made in para. [12] is that the grantee’s previous conditions remain applicable: this reflects para. [7] of the EA Policy. Mr Malik sought to rely on that as an indication that the letter meant that the Appellant was not to be treated as an overstayer for the purpose of an application for leave to remain made during the currency of the EA, but I do not accept that: conditions imposed under section 3 (1) (c) of the 1971 Act have nothing to do with eligibility for a future grant of leave. The other point made in para. [12], reflecting para. [8] of the Policy, is that an EA is not a grant of leave. Mr Holborn emphasised this, because it necessarily means that the grantee remains an overstayer for the purpose of the Rules; but that does not go the heart of the issue, since the Appellant’s case is not that he was not an overstayer but that the effect of the assurance was that he would not be treated as one.[53]Para. [13]. The first sentence of para. [13] is central to Mr Malik’s case. I can summarise his submissions, and Mr Holborn’s response, as follows: - Mr Malik submitted that the phrase “during this time” can only mean during the period covered by the assurance; that there is an explicit statement that during that time the grantee “will not be regarded as an overstayer”; and that the reference to “any future applications” made it clear that that extends to the context of an application for leave to remain. - Mr Holborn disputed that reading. He said that the text following “during this time” contained two distinct statements separated by the word “or”. Only the second statement applied to applications for leave, and an assurance that “you will not … suffer any detriment in any future applications” could not be said to be an unambiguous reference to how current overstaying would be treated for the purpose of an application made during the currency of the assurance; among other things, para. [11] used the term “future applications” to refer to applications made after the expiry of the current leave or EA (i.e. an application from abroad). In any event, even if the statement was referring to a disregard of overstaying “during this time”, that phrase indicated that it only applied if there had been no (unregularised) overstaying prior to the grant of the assurance. I will not attempt at this stage to choose between those readings. It is in truth often a futile exercise to try to construe boiler-plate provisions of this kind, even if they are well-drafted, on a purely verbal basis and in isolation from the context in which they appear.

DISCUSSION AND CONCLUSION

[54]The substance of Mr Malik’s case will have appeared from the foregoing review of the terms of the letter. The starting-point is that para. [7] explicitly states that the Appellant might wish to take advantage of the EA to make an application for leave to remain, and paras. [8]-[9] refer him to relevant information for that purpose: that statement would be empty if the application would be bound to fail because he was an overstayer. But in any event, on his submission para. [13] amounts to a clear statement he would not be regarded as an overstayer for the purpose of such an application made during the currency of the EA. There was thus a clear and unambiguous undertaking to that effect giving rise to a legitimate expectation to which the Secretary of State was bound to give effect. Mr Malik submitted that that could be done either by reading down the terms of paragraph SW 2.2 (a) (or perhaps the definitions of “overstaying”) so as to exclude overstaying covered by an EA or by granting the Appellant equivalent permission outside the Rules.[55]The starting-point in considering that submission is that it is inherently highly implausible that the UKVI letter was intended to give any such an undertaking. As already established, the Appellant did not qualify under the EA Policy. He was, and indeed had been for over nine months, an unregularised overstayer. That being so, it is very hard to see why UKVI should be prepared to give him precisely the same disregard (save only that he would have to make his application in two weeks rather than ten) as he would have enjoyed if he had applied for an EA when his visa first expired and had kept it renewed thereafter. The point is not simply formal: I refer to para. 27 above. A regularised overstayer qualifying for the grant of an EA under the Policy will have satisfied UKVI that they have throughout the relevant period been unable to return home. The Appellant, by contrast, was at the point that he makes his request able to return to India and may for all we know have been able to do so for weeks or months. There is no rational reason why he should be entitled to have his overstaying disregarded simply because he has made a request for an EA long after he should first have done so, still less when that application was refused. I accept of course that the question is not as such what UKVI might be expected to have intended but how its letter would reasonably be understood. But in deciding that question it is legitimate to read the letter in the light of the EA Policy, which is a public document which the Appellant or in any event his advisers would be expected to consider.[56]Another relevant contextual consideration is that the letter is (and would be understood by an informed reader to be) a standard-form document which is not designed for the particular circumstances of the Appellant’s case: as we have seen it does not refer to anything said in KT’s letter (indeed it does not even identify his country of return). It would not be surprising if not all the standard provisions of such a letter were applicable to every recipient. More specifically, it would not be surprising if the provisions referring to the possibility of making an application for leave to remain were directed at persons who, under the well-understood structure of the Immigration Rules, either had leave to remain at the date of the request or in any event had regularised their position by obtaining an EA, and not to unregularised overstayers like the Appellant. I am not suggesting that he or his advisers could be expected to know what templates UKVI uses and in what circumstances. I only make the more general point that a dispassionate reader of the letter when considering whether it was meant to apply to someone in his irregular circumstances would take into account that it was in a standard form.[57]In the light of those considerations I do not believe that the provisions of the UKVI letter on which Mr Malik relies amount to the clear and unambiguous undertaking that he claims. I accept that para. [7] contemplates that the Appellant might make an application for leave to remain during the currency of the EA, but I do not regard that by itself as necessarily implying an undertaking that if he did so the fact that he had been an unregularised overstayer for over nine months would be disregarded. As for para. [13], I have already identified the difficulty in working out what the crucial first sentence means: see para. 53 above. I need only say that, however it should be parsed, it is in my view entirely possible to read whatever assurance it conveys as being limited to the period of regularised overstaying.[58]That conclusion does not mean that the UKVI letter is a satisfactory document. On the evidence before us, insufficient thought seems to have been given to the different situations in which full EAs might be refused and in which “short-term assurances” might be appropriate, or on what terms they should be granted, and how to draft clearly in order to cover the different possibilities. An alternative argument that might have been available to the Secretary of State was that even if the letter contained an unambiguous undertaking of the kind alleged by the Appellant that was clearly the result of poor drafting and that it would not be fair to hold her to it, particularly since the Appellant would not appear to have relied on it and in view of his history of unregularised overstaying. But Mr Holborn did not advance such an argument, and I say no more about it.[59]I am conscious that I have not so far said anything about the judgment of the Upper Tribunal. I mean no disrespect by that: where the issue is one of pure law, it is often more straightforward for an appellate court to address it directly rather than through the lens of the reasoning of the tribunal below. In fact Thornton J’s reasoning appears to me to be substantially the same as my own, and I found her exposition of the background very helpful. I should, however, briefly mention one point because it featured to some extent in the submissions before us. At para. 43 of her judgment Thornton J said that the Appellant had to show that the UKVI letter “amounted to a clear and unambiguous undertaking that his previous overstaying would be disregarded”. Mr Malik submitted that her use of the phrase “previous overstaying” betrayed a fundamental misunderstanding. All that the Appellant had to show was that he was not (or, rather, would not be treated as) an overstayer at the date of his skilled worker application: overstaying which is no longer current at the date of application is not generally treated under the Rules as a ground for refusal. But I think it is clear that that was not the sense in which Thornton J was using the phrase: as Mr Holborn put it, she was referring to overstaying which was current but which extended back before the date of the request of the EA.

DISPOSAL

[60]For those reasons I would dismiss this appeal.

Dingemans LJ:

[61]I agree.

Falk LJ:

[62]I also agree.