What Happens If You Overstay Your Visa Due To COVID?

As immigration Solicitors, we spend a great deal of our time reminding clients of the importance of adhering to the conditions of their visa and not staying in the UK past their visa’s expiry date. At times over the past 18 months, however, it has been all but impossible for many UK visa holders to return to their home country due to travel restrictions. To cope with this, the Home Office put in place concessions to assist those who have been forced to stay past the expiry date of their visa as a result of the pandemic. But with COVID-19 becoming less of an issue in highly vaccinated countries, global travel has tentatively started to resume, allowing some migrants in the UK to return to their home countries. There are still travel restrictions in place, however, making it difficult for some to return home. In this article, we will take a look at the latest guidance for foreign nationals in the UK whose visa has or is due to expire and who have been unable to return home due to COVID-19.

Are there still COVID-19 concessions in place for foreign nationals?

Yes, even now, it is possible to request ‘exceptional assurance’ from the Home Office if you have genuinely been unable to return home due to COVID-19 travel restrictions. The official policy of the UK Home Office is that all foreign nationals in the UK whose visa is about to expire should do everything they can to regularise their immigration position. This means either applying for a new visa, an extension, or leaving the country. The Home Office states, “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”.

If you are granted exceptional assurance, you will have protection from any action being taken against you as a result of staying in the UK once your visa has expired. It also means that you will be able to work, study, and/or rent during the period of exceptional assurance. The Home Office states, “If conditions allowed you to work, study or rent accommodation, you might 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”.

Am I eligible for exceptional assurance?

There are two main exceptions that foreign nationals can use:

For those returning to an amber or red-listed country

For foreign nationals who do intend to leave the UK when their visa expires but are unable to do so if they are planning to return to a country that is currently on the UK’s amber or red list, it is possible to request ‘exceptional assurance’. To be eligible for exceptional assurance, applicants must have a visa, leave, or prior exceptional assurance, which expires before the end of September 2021. If your visa or leave extends past this date, you will be expected to leave the country (unless a new concession is made after this date).

For those returning to a green country but whose border is closed

In some cases (e.g., New Zealand), it is not possible for nationals of other countries to return home due to closed borders, despite the fact they are on the UK’s green list. In other words, they can leave the UK but not enter their home country. Some people are also unable to return home due to over-subscribed quarantine facilities in their home country. In either case, it may be possible to secure exceptional assurance from the Home Office. The Home Office states, “there may also be exceptional cases where you may be unable to return to a country or territory listed as green where that nation has closed their borders or where quarantine facilities are temporarily over-subscribed, in which cases you may also request ‘exceptional assurance’”.

How can I request exceptional assurance?

To request exceptional assurance, you will need to write to the UKVI assurance team. They advise that an email should be sent to: cihassuranceteam@homeoffice.gov.uk with the subject of “Request for an assurance”. The request email should include the following information:

• full name
• date of birth
• nationality
• Home Office, GWF or any other reference number
• type of visa
• the expiry date of the visa
• reason for request
• evidence of flight or evidence showing reason you can’t leave

To the above email, you will need to attach any evidence you have which proves you cannot return to your home country. This might include information on the border lockdown in your home country or proof that no flights are available.

You can be assured that while you are waiting for a decision on your exceptional assurance request, you will be legally in the UK and subject to the conditions of your current visa (or most recently expired visa). If you already have exceptional assurance but still cannot leave the UK by the end date of the assurance given, you will need to reapply using the above process.

Final words

If you are unsure if you are eligible for exceptional assurance, speak to an immigration advisor who will be able to explain your options? This is particularly the case if your visa has already expired (or is imminently due to expire) and you do not fit into any of the above categories (i.e., your home country is not on the red or amber list or its border is not closed). With the correct approach, it may be possible to protect your legal position in the UK, meaning any future applications for immigration clearance will also not be affected.