1.We launched an inquiry into Home Office preparedness for Covid-19 (coronavirus) on 12 March 2020.1 We have received over 150 submissions of written evidence2 and have since published short reports on the policing response3 and domestic and child abuse.4 We have also taken evidence from the Home Secretary and engaged in extensive correspondence with the Home Office.5
2.This short report summarises issues relating to immigration and visas which were discussed at an evidence session held on 21 April 2020, in which we heard from Adrian Berry, Chair of the Immigration Law Practitioners’ Association (ILPA) and Colin Yeo, a barrister specialising in immigration and asylum law and editor of the Free Movement immigration website. We also took evidence on a wider range of immigration, asylum and detention issues, some of which is pertinent to this report, from a separate panel featuring Andy Hewett, Head of Advocacy for the Refugee Council, Chai Patel, Legal Policy Director for the Joint Council for the Welfare of Immigrants (JCWI) and Bella Sankey, Director of Detention Action. We followed up issues raised in this session in writing and in evidence with the Home Secretary on 29 April.
3.We recognise that in the current unprecedented circumstances it is hard to operate a normal immigration system. Travel restrictions have made entering or leaving the country a complex or impossible process; there are difficulties in implementing normal work or income requirements without undermining public health messages; and the impact of the pandemic on workload and staffing levels is also being felt by the Home Office. We place on record our appreciation to Home Office officials and caseworkers who have provided support and guidance to people at this challenging time. In this context, we welcome recent developments that show that the Home Office recognises the need for pragmatic temporary changes to ensure that the UK’s immigration and visa systems can continue to function appropriately.
4.Some important announcements have been made by the Government in the period while we were preparing this report. Our analysis reflects these developments.
5.On 24 March 2020, the Home Office issued guidance to UK visa applicants and those with temporary status in the UK.6 This was the first substantive Government guidance on immigration issues related to Covid-19 since 17 February 2020, when the Government had announced that it was extending visas for Chinese citizens, unilaterally conferring leave to remain on those whose visas had an expiry date between 24 January 2020 and 30 March 2020.
6.The Government announced that individuals whose leave to remain in the UK expired between 24 January 2020 and 31 May 2020 could apply to have their visa extended to 31 May 2020 if they were unable to leave the UK because of travel restrictions or self-isolation related to Covid-19. They initially had to do so by emailing the Coronavirus Immigration Team (a “dedicated COVID-19 immigration team” set up within UKVI “to make the process as straightforward as possible”), but this was later replaced by an online form. Visa extensions would last until 31 May 2020 but would be kept under regular review in case further extensions were needed. The Home Office stated that those who applied for visa extensions would be expected to return to their home countries as soon as possible once flight and border restrictions are lifted.
7.The Home Office also temporarily expanded the in-country switching provisions (meaning that individuals who wanted to switch visa routes—for example from Tier 4 (student) to Tier 2 (General Worker)—to stay in the UK long-term could do so from within the UK), waived a number of requirements in light of advice on self-isolation and social distancing (such as allowing non-EU nationals in the UK under work or study routes to undertake their work or study from home), and stated that no immigration enforcement action would be undertaken during this time for those who emailed the department.7
8.On 22 May, in the run-up to the 31 May deadline, we sent a public letter to the Home Secretary urging her to continue these temporary provisions for a further two months, to 31 July 2020.8 Later that day the Government confirmed that the provisions would be extended until 31 July.9 Individuals who had already applied for a visa extension to the end of May would have them extended automatically to 31 July.10
9.Up to the end of April 2020, nearly 65,000 Covid-19 related visa extensions were granted by the Home Office. The majority of these were granted to Chinese nationals who were unable to travel home at the end of their visa. The Government has not published data on extensions granted to frontline health and care workers—detailed below—which were announced later, as “processes are being developed to allow for reporting”.11
10.The Home Secretary has said that “nobody will be punished for circumstances outside of their control”.12
11.We welcome the Home Office’s recognition of the problems faced by individuals with soon-to-expire visas and the offer of visa extensions. Granting temporary extensions—initially until 31 May and then to 31 July—has removed one burden at a time of great stress and difficulty for many people. We welcome the commitment by the Home Secretary and senior Home Office officials that nobody will be punished for circumstances beyond their control.
12.Waiting until the middle of May to extend visas beyond 31 May to 31 July will have caused some people difficulties, however. If it is likely that travel continues to be difficult beyond 31 July because of Covid-19, the Home Office should continue with appropriate targeted or general extensions and must notify people affected in good time.
13.There are concerns about the Home Office’s procedural approach to offering visa extensions. The scheme is not automatic—unlike the initial offer to Chinese citizens and the later policy on visas for NHS workers, discussed below—and relies on an individual making an application for an extension. This means that individuals who are unaware of this offer from the Government may miss out on the opportunity to extend their visa and become illegal overstayers. The Joint Council for the Welfare of Immigrants (JCWI) told us in written evidence that the Government’s “discretionary” scheme also falls short of what is needed because an application for an extension of leave does not get an automatic approval under section 3c of the Immigration Act 1971:13 it could be rejected, again making the individual an overstayer.14 The Immigration Law Practitioners’ Association (ILPA) additionally commented that the policy relating to visa extensions creates additional work for the Home Office at a time when its resources are impacted by the pandemic, noting concerns about the capacity of the department to process and grant these requests in a timely manner, particularly given the backlogs which existed in the system prior to the pandemic.15 The Government’s announcement in March acknowledged that “some applications may take longer than usual due to COVID-19 related operational pressures”.16
14.The greatest concern is that of the legal basis for the Government’s offer of visa extensions: the immigration website Free Movement stated that “The legal basis for all this is unclear, to put it mildly”;17 the JCWI claimed in written evidence that “Immigration lawyers are wary of the scheme”;18 and citizens’ rights campaign group the3million said that the policy appears to offer no legal protection to those who rely on it.19
15.Colin Yeo told us:
We are not sure on what legal basis the Home Office is purporting to extend people’s visas. It is not clear. Maybe there is some hidden mechanism that is being used that we are not aware of, but certainly other lawyers like me are not able to understand what the legal basis is for what the Home Office says it is doing, which causes us to wonder whether it is legally effective, and therefore whether people who think that their visas are being extended will find later that they were not, and [that] the Home Office’s true policy is that it is not going to penalise people.20
16.Mr Yeo noted that other countries are extending all visas automatically for people who are unable to leave, and that it would be “simpler and more straightforward and more reassuring if there was a similar policy here”. He added that doing so would ensure that all the situations that may arise in different visa categories are covered.21 However, ILPA told us in written evidence that the Home Office had advised that it was not possible to carry out a blanket extension for all of those whose leave was due to expire before 31 May 2020.22
17.Mr Yeo also questioned the legality of automatic extensions, such as those offered to Chinese visa-holders in February and to NHS employees in March (see below), in a written article on the Free Movement website23 and in oral evidence:
some of the announcements we have seen are for automatic grants of leave, and there is some doubt in the legal community over whether that works as a matter of law. The legislation [Section 4 of the Immigration Act 1971] seems to require personalised written notice to be given to people to extend their leave or for there to be a statutory instrument, and what we are seeing—the announcement on the extension of Chinese visa-holders earlier, and now the announcement that there is going to be an automatic extension for NHS workers of some sort, although we are not sure who—does not seem to achieve either of those things. It is not personal and it is not by statutory instrument, so it is hard to see that the Home Office is really, in law, doing what it is aiming to achieve.24
18.Witnesses called for the introduction of a statutory instrument to underpin and give clarity to the Home Office’s offers of visa extensions.25 This would be the most legally watertight method of varying leave, would give the greatest certainty and clarity (especially over who is included), and would not involve any Parliamentary procedure,26 so could be done quickly. In the absence of a statutory instrument extending leave, those who are not identified by their employers, or in whose favour the Home Secretary does not otherwise exercise her discretion, may have to rely on less concrete grounds for judicial review. Any difficulties over drafting or defining the individuals in scope would be an argument for a statutory instrument, rather than against it.
19.There has already been a case of a statutory instrument being used to vary leave to remain in the UK under the Immigration Act 1971: in October 2016 an order came into force enabling leave to be extended in the cases of overseas domestic workers for whom there were reasonable grounds to believe them to be a victim of modern slavery.27
20.However, the Home Secretary suggested to us that a statutory instrument would not be forthcoming, stating that “as Home Secretary, I am able to exercise discretion to extend immigration leave in exceptional circumstances, and I think we can all agree that these are exceptional circumstances”.28
21.The Home Office must clarify the legal basis for the offers of visa extensions. Relying on the Home Secretary’s discretion is not sufficient legal assurance for people whose lives in the UK depend on evidential clarity. We recommend that the department introduce a statutory instrument clarifying the legal basis for both the extension of leave for all individuals who are unable to leave the country before the expiry of their current visa, and for the automatic extensions of leave offered to NHS staff.
22.The Home Office must also clarify the circumstances in which an individual who applies for a visa extension would not be successful in their application.
23.The department must improve communication about the availability of visa extensions. This arrangement has not been well publicised, and we are concerned that there may be people who risk overstaying (or who have already overstayed) their visa because they are unaware that they may be entitled to an extension. We request that the Home Office is transparent about the scale of the issue by providing us with its estimate of the number of people whose visas have expired or will expire during the time period which would make them eligible for an extension, the numbers who have so far applied for an extension, and the numbers who are thought still to be in the country as unwitting overstayers. We call on the Home Office to contact all individuals whose visas are due to expire before 31 July 2020 directly, to inform them about what they have to do to extend their visa.
24.We also request that the Home Office clarify whether an individual who does not apply for a visa extension, and therefore overstays their existing visa because of Covid-19, may retrospectively gain the extension to which they would have been entitled had they known about the department’s offer at an earlier point. We also ask the Home Office to explain what the implications are for individuals who have inadvertently overstayed but who do not apply for the extension, including in particular the impact this might have on future applications to return to the UK.
25.As indicated in our letter to the Home Secretary of 22 May, we recommend that the Home Office explores the possibility of blanket visa extensions or an alternative automatic process, appropriately underpinned by statute and without any need for an application. This would prevent any unintentional overstaying due to travel restrictions and ease the burden on the Home Office. If the Home Office does not believe this is possible, it should explain why not.
26.As well as the general offer of visa extensions to those whose visas are expiring before the end of May 2020, on 31 March the Home Secretary additionally announced that the visas of NHS doctors, nurses and paramedics which are due to expire before 1 October 2020—and those of their family members—would be automatically extended for one year. The department stated that this would apply to around 2,800 workers, would be fee-free, and would be exempt from the Immigration Health Surcharge. As set out in Table 1, typical visa fees alone (excluding the Immigration Health Surcharge) can cost more than £1,000 for individuals and close to £5,000 for a family of four. The Home Office said that these changes demonstrate “how valued overseas NHS staff are to the UK”.29
Table 1: Visa costs for selected routes
Immigration Health Surcharge
Tier 2 visa in a non-shortage occupation (e.g. doctor) for five years
£1,220 (£1,408 if extending or switching in the UK)
£2,000 (£3,120 from October 2020)
Family of four
£4,880 (£5,632 if extending or switching in the UK)
£8,000 (£10,940 from October 2020)
Tier 2 visa in a shortage occupation30 (e.g. nurse) for 5 years
£2,000 (£3,120 from October 2020)
Family of four
£8,000 (£10,940) from October 2020)
Individual on a spouse visa, who then converts to a Tier 2 shortage visa
£1,987 (£1,523 initial settlement visa for 3 years, £464 Tier 2 shortage occupation visa for 3 years)
£2,400 (£3,744 from October 2020)
Individual on a 10-year route to settlement as a parent or partner
£1,033 renewed every 2.5 years
£4,800 (£6,240 from October 2020)
£8,932 (plus initial entry route cost)
Additional costs: £2,389 per person for conversion to indefinite leave to remain (which also comes with Minimum Income Requirements), £1,460 for British naturalisation, Immigration Skills Charge for sponsors of Tier 2 workers.
27.As of January 2020, 13.8% of NHS staff in Britain (170,000 of 1.28 million) report a non-British nationality. This includes 29% of doctors, 17.9% of nurses and 10.4% of clinical support staff. NHS staff hold 200 different non-British nationalities, and around 38% of NHS doctors gained their medical qualification outside of the UK.31 On 11 May the Office for National Statistics reported that there had been 106 deaths involving Covid-19 among healthcare workers as of 20 April 2020.32
28.However, while the initial announcement said this would apply to “migrant doctors, nurses and paramedics, employed by the NHS”, an update published on 17 April referred to “Some NHS workers and their families” and linked to a page suggesting that it applied only to those on Tier 2 (general work) visas.33 If this were to be the case the following would be excluded:
29.The Home Office’s decision not to extend the offer to other key professions, such as social care workers, was also questioned.35 As of September 2019, the adult social care workforce included 134,000 staff with a non-EU nationality: 109,000 of those were employed in direct care, and many of those have played a key role in supporting vulnerable people during the Covid-19 crisis.36 The Government had previously acknowledged the contribution being made by the social care workforce: in an open letter on 28 March the Secretary of State for Health and Social Care, Rt Hon Matt Hancock MP, wrote that “you, along with colleagues across the health and social care system, are on the front line caring for and supporting people in incredibly challenging circumstances” and that “we are committed to doing whatever is needed; that promise applies just as much to social care as it does for the NHS”.37
30.Between 1 January and 29 May 2020, 13,460 deaths involving Covid-19 occurred in care homes in England and Wales, 29.4% of all deaths from the virus (38.7% in the most recent reporting week).38 Data from the Care Quality Commission and the Care Inspectorate Wales shows that a further 448 deaths occurred in care homes in England and Wales in the week to 5 June.39 In the week to 29 May 2020, Covid-19 was involved in 28.2% of all deaths in care homes in England and Wales.40 As of 31 May 2020 there had been 6,225 suspected or confirmed Covid-19 outbreaks reported in care homes in England, with most regions of the country seeing more than 40% of care homes reporting an outbreak (more than 50% in the North East).41 In Scotland, to 7 June there had been 1,861 deaths in care homes where Covid-19 had been mentioned on the death certificate, 46.5% of all deaths from the virus. In the most recent week (to 7 June) there had been 42 deaths from Covid-19 in care homes, 47.2% of all deaths from the virus that week.42
31.In addition, a total of 131 deaths involving Covid-19 among social care workers in England and Wales were registered up to and including 20 April 2020, with 98 of these amongst care workers and home carers. The Scottish Government also reported 18 deaths of health and social care workers related to Covid-19 as of 2 June.43 Analysis by the Office for National Statistics, published on 11 May 2020, found that rates of death involving Covid-19 were statistically significantly higher among male and female social care workers (23.4 and 9.6 deaths per 100,000 respectively) than among those of the same age and sex in England and Wales (national death rate of 9.9 deaths per 100,000 for males and 5.2 deaths per 100,000 for females). In comparison, rates of death among healthcare workers were not found to be statistically different to that of the general working population.44 Nadra Ahmed, the chair of the National Care Association, accused the Government of having “completely abandoned” the care home sector to the threat of coronavirus.45
32.Care workers, and the care sector, are facing additional difficulties at the moment. According to workforce estimates published in October 2019, there were 122,000 vacancies across England, with an average vacancy rate of 7.8%. 24% of jobs were on zero-hours contracts, real term median hourly pay was £8.10, and the average turnover rate was 30.8%, with 440,000 workers leaving the profession in the last year. An estimated 9% (134,000) of the workforce were non-EU, with a further 8% (115,000) EU citizens, but the new immigration system proposed by the Government does not include a visa route which would enable care workers to come to the UK under the points-based system.46
33.We wrote to the Home Secretary asking for clarity on the issue of automatic visa extensions for NHS and health staff, in a letter of 14 April requesting that the free and automatic visa extensions being applied to NHS frontline workers be expanded to include frontline workers in the social care sector, and in a further letter on 21 April containing questions about the proposed NHS visa extensions.47
34.In her response, received on 29 April, the Home Secretary stated that the visa extension offer applies to:
any NHS doctor, nurse or paramedic who is subject to immigration control, not just sponsored migrant workers on a Tier 2 (General) or Tier 5 visa, whose visa will expire before 1 October 2020 and where the NHS Trust confirms they want to continue to employ an individual.
To help them work uninterrupted on battling COVID-19 and supporting the NHS, we have extended the automatic visa extension offer to a range of health professionals in the NHS and the Independent Health Sector, including midwives, social workers and medical radiographers.48
35.Information published on the Government’s website that same day provided further clarity, listing the “eligible professions”:
36.It is notable that while the offer is open to “crucial overseas health and care workers”,50 the Home Office does not appear to include non-medical NHS employees such as hospital porters, cleaners, and administrative workers. This is despite the Home Secretary telling us that “We recognise that all NHS staff are contributing to this tremendous effort”51 and that “we are conscious right now of the service of all NHS professionals [ … ] This is not about segmenting or discriminating against anybody who works in the NHS”.52
37.The Home Secretary confirmed that social care workers who are employed by NHS Trusts (or NHS commissioned independent healthcare providers) and work in “one of the defined occupations” will benefit from the automatic visa extension offer. The relevant defined occupations included in the list outlined above are classified as ‘regulated professions’, a category which includes social workers, a group to whom the Home Secretary made particular reference in her letter of 29 April.
38.Only 5% of the social care workforce (84,000) in 2018 were in one of the regulated professions: 76% (1.2 million) worked in direct care, which includes senior care workers, care workers, community support and outreach workers and other care-providing job roles.53
39.There were an estimated 18,000 social worker jobs in the adult social care sector, 5% (around 900) of which were performed by non-EU citizens. By contrast, there were an estimated 109,000 non-EU citizens providing direct care.54
40.The Home Secretary told us that there are difficulties in extending the visa offer to all social care workers. One of these is that the Home Office does not know who may be entitled to a visa extension:
we are subject to some difficulties in terms of understanding and knowing the immigration background and status of individuals, particularly those who have not come through the tier 2 route.55
41.She also told us that “The disparate nature of the social care sector makes it a unique challenge”56 and that “Trying to get information from [independent providers], at a really difficult time, is very challenging right now”.57 On 14 May the Home Secretary told us that the Home Office had contacted 270 NHS Trusts to identify individuals eligible for the visa extension offer, and emphasised that “We are determined to give the social care sector the support it needs to respond to coronavirus”, highlighting the guidance and additional funding provided.58
42.Another group excluded by the Government’s plans are the foreign national family members of British health and care workers. As announced, the Government’s NHS concession requires the applicant to have a visa which is due to expire before 1 October 2020 and work for the NHS or an independent healthcare provider in an eligible profession.59 When the applicant frontline healthcare worker meets these requirements, both they and their family members are granted extensions of leave. However, British nationals and those with Indefinite Leave to Remain are obviously unable to meet the first criteria, and this means that any of their family members with expiring leave are not entitled to an extension. Family members of British frontline staff can live in the UK with various forms of immigration permission, and applications for leave extensions or for indefinite leave to remain can be onerous in terms of the requirements to be met and the evidence to be gathered.
43.ILPA told us that it had raised this issue with the Home Office, who confirmed that this group are excluded from the concession but that the department had no plans to address the omission. ILPA said that while the Home Office would be unable to identify these individuals in the same way as others currently entitled to the visa extensions (through employers), this group should not be excluded for administrative convenience.60
44.One further issue we explored was the residency status of UK-based non-UK family members of NHS workers who, tragically, die of Covid-19. Adrian Berry told us that there was no Covid-19 specific provision for the leave or residency status of their family members to be secured. While there is, in bereavement situations, provision for permanent residence to be granted on compassionate grounds, there is no guarantee.61 Colin Yeo went further:
The rules do not allow for the family members of a tier 2 worker who dies to remain in the UK, and normally, as a lawyer, you would therefore advise somebody that they cannot do that. They could potentially make a compassionate application, but that is a very hypothetical situation. Compassionate applications under normal circumstances have a very low chance of succeeding with the Home Office and there is also a very substantial fee that would have to be paid for that as well.62
45.Research has found that there have been disproportionate rates of death from Covid-19 amongst healthcare staff of different nationalities and from different ethnic groups. As well as there being high rates of death amongst BAME healthcare workers (63%, despite BAME staff making up 21% of the NHS workforce63), an analysis of 203 publicly reported Covid-19 related deaths of health and social care workers (to 11 May 2020) found that 22% of the NHS nurses who had died from Covid-19 were from the Philippines, despite Filipino nurses comprising only 3.8% of the nursing workforce. Similarly, 12% of the nurses who died were from Zimbabwe and 6% from Nigeria, despite accounting for only 0.75% and 0.45% of NHS nurses respectively.64 An earlier version of the analysis showed that more than half of the healthcare workers who had died were not born in the UK.65
46.We raised this issue with the Home Secretary, asking what provisions are in place for non-UK family members of NHS workers who die of Covid-19 and whether they would be subject to further applications or fees to remain in the UK.66 The Home Secretary replied to us that, in the event of an NHS worker dying from Covid-19, any dependants will be granted immediate indefinite leave to remain, without a requirement to pay a fee.67
47.On 12 May we asked the Home Secretary whether indefinite leave to remain would similarly be granted to the family members of social care workers or non-medical NHS staff who die from Covid-19.68 Following the publication of correspondence with the Committee, the Home Office announced on 20 May that this would be the case.69 The families of eligible frontline health and care workers who die from Covid-19 will also receive a payment of £60,000 under a life assurance scheme launched by the Department of Health and Social Care in April 2020. This scheme covers “full, part-time or locum NHS and public health workers”, social care workers,70 and cleaners and porters.71
48.Most non-EEA nationals applying for temporary leave to remain in the UK are required to pay an Immigration Health Surcharge to the Home Office, in addition to the immigration application fee (see Table 1 pp8–9).72 This is justified on the basis of ensuring that “migrants make a proper financial contribution to the cost of their NHS care”.73 Prior to the introduction of the Immigration Health Surcharge in 2015, temporary non-EEA migrants had access to free NHS care soon after arrival in the UK. Around 763,000 visas granted in 2019 attracted the Immigration Health Surcharge.74
49.When it was introduced in 2015, the surcharge was £200 per year (£150 for students).75 It has since doubled, with the current rate (since January 2019) £400 per year (£300 for certain visa categories). In the 2020 Budget, the Chancellor announced that the surcharge was to increase to £624 per year from October 2020 (£470 for students and under 18s). EEA nationals arriving in the UK from 1 January 2021 will be subject to the increased rate. The Government has calculated that these changes will raise an additional £150 million in 2020–21 and an additional £355 million in each of the following two years.76
50.The Immigration Health Surcharge is paid by migrants in addition to the money they contribute to the NHS through taxes and must be paid in full at the point of application for the duration of the visa being applied for. For example, from October 2020, an individual applying to come to the UK on a Tier 2 general work visa (the route used by those seeking to work in the NHS) for five years with a partner and two children will have to pay £14,652 in total—a yearly Immigration Health Surcharge of £10,940 in addition to the £3,712 visa fee for the four applicants. There are also additional processing fees, and the applicants are required to show evidence of existing funds to support themselves—£945 for the main applicant and £630 for each dependant.77
51.The Home Office has said that the one-year visa extensions for NHS staff announced in March 2020 would be exempt from the Immigration Health Surcharge.78 We asked the Home Secretary whether the Home Office had considered exempting all NHS and social care workers—not just those in scope of the March announcement—from the Immigration Health Surcharge during the Covid-19 crisis.79 She responded:
Outside of the extension, migrants who come to the UK for more than six months are required to pay the Immigration Health Surcharge, regardless of where they are working. This money goes back into the NHS and it would not be fair to make exceptions, particularly as other essential public workers are also required to pay the surcharge, such as teachers. In return, they can access the full services the NHS offers. We have a well-established principle that everyone should pay in for the care they receive from the NHS.80
52.Asked about the Immigration Health Surcharge by the Leader of the Opposition at Prime Minister’s Questions on 20 May 2020, the Prime Minister said that:
we must look at the realities. [The NHS] is a great national service—it is a national institution—that needs funding, and those contributions help us to raise about £900 million.81 It is very difficult in the current circumstances to find alternative sources, so with great respect for the right hon. and learned Gentleman’s point, I think it is the right way forward.82
53.The next day, the Prime Minister’s spokesman indicated that the Prime Minister had asked the Home Office and the Department for Health and Social Care to exempt NHS and care workers from the Immigration Health Surcharge “as soon as possible”. The Institute for Fiscal Studies think-tank has estimated that this exemption would cost around £90 million a year.83
54.We strongly welcome the Home Secretary’s offer of immediate and automatic indefinite leave to remain to the families of NHS doctors and nurses, and the more recent extension to the families of social care workers and non-medical NHS staff following correspondence with the Committee. It would be wrong to make a family that has just lost a parent, spouse or child to Covid-19 while working to care for others suddenly have to leave their home, their school and this country.
55.The Government is right to recognise the huge debt we owe to all NHS and social care workers for the work they are doing during the Covid-19 pandemic. Given that they have already contributed so much to the NHS through their valiant and life-saving work, the Government’s announcement that NHS staff and social care employees will be removed from the Immigration Health Surcharge is very welcome. We encourage the Home Secretary and Health and Social Care Secretary to make fulfilment of this commitment an urgent priority. We also believe there is a need to review the appropriateness of the NHS charge, and the rate it is set at more generally.
56.We also welcome the Government’s offer of free visa extensions to some NHS staff and their families, who might otherwise have to pay thousands of pounds to stay in the UK. As of January 2020, 13.8% of NHS staff report a non-British nationality. They should not have to face the pressures and costs of the UK visa system in the middle of a pandemic, so the Home Secretary was right to introduce a free visa extension. We are pleased that the offer has now been expanded to a wider pool of workers than was initially communicated.
57.However, we are extremely disappointed that the Government has so far decided not to extend the offer to non-medical NHS employees and social care workers. These lower paid workers have now rightly been included in the life assurance scheme, the provisions for bereaved families, and the exemption from the Immigration Health Surcharge. Excluding care workers and lower-paid NHS staff from the fee-free visa extension, however, is unfair and fails to recognise the scale of their contribution to the UK fight against Covid-19. We recommend that all NHS staff—regardless of job role, pay grade or visa route—and social care workers are offered the same fee-free one-year visa extension. It cannot be right that, at a time when they are providing a vital and life-saving service for the country, non-UK health and care staff have to worry about their status and residency in the country.
58.Many of the excluded NHS employees—who include hospital porters, cleaners and administrative staff—are providing essential services to the NHS and its patients at this most trying time. They are also more likely to be in lower-paid job roles, meaning that the necessity of paying visa renewal fees is a much greater financial burden. The goodwill generated by the Government through this offer to NHS staff will only be sustained by addressing discrimination against workers in lower-paid and lower-profile roles.
59.It is also unfair to exclude the overwhelming majority of social care workers, including those providing direct care, at a time when care homes are under immense pressure as a result of Covid-19. Care workers are as much on the frontline of fighting the virus and trying to save lives as the NHS, and they have also been more likely to see their own health suffer. A care worker who needs to renew family visas this summer could be facing costs of thousands of pounds, with more required for the Immigration Health Surcharge that has not yet been lifted. For care workers who often do not get more than statutory sick pay if they get ill or need to self-isolate this is an additional and grave financial worry, which could put them under pressure to keep working even when it is not appropriate to do so.
60.We do not accept the Home Office claim that including social care workers in the free visa extensions policy is too difficult because many work for independent providers. The Government has rightly found ways to include care workers in the life assurance scheme, the provisions for those who die in service, and the exemption from the Immigration Health Surcharge. It must now address the remaining anomaly and include them in the free visa extension. A statutory instrument confirming fee-free one-year visa extensions to all NHS staff and social care workers would have an immediate effect, by confirming that these people are entitled to an extension while the Government seeks information from employers to apply the extensions in practice. The Health and Social Care Secretary rightly stated that “we are committed to doing whatever is needed; that promise applies just as much to social care as it does for the NHS”. The Government now needs to fulfil that promise.
61.The Government should also ensure that foreign national family members of British health and care staff are included in its offers of fee-free visa extensions. There appears to be no good reason for excluding this group of frontline health workers. They should be able to receive free one-year visa extensions on the same basis as the family members of non-British health and care workers.
62.We also call on the Government to take further measures in respect of those working in health and social care during the pandemic. Many frontline and support staff do not have British citizenship or long-term security in the UK as they will be on short-term visas. Some will ultimately hope to attain indefinite leave to remain and settlement in the UK. For those who have worked tirelessly to combat Covid-19, and who wish for it, the Government should set out new arrangements to offer them British citizenship or permanent residency in recognition of the huge contribution they have made to the UK health and social care system during the Covid-19 crisis. We believe that people who have given so much, and in many cases risked their own health, for the nations and people of the UK should be assisted to become permanent members of the society to which they have dedicated themselves.
63.The advice issued by the Home Office states that people already in the UK with limited leave to remain can still apply for further leave but must meet the requirements of the route under which they are applying.84 This may become an issue for many visa holders whose ability to meet the relevant requirements has been affected by the impact of Covid-19.
64.For example, several visa routes—including the spouse and fiancé visas—have a minimum income requirement. This dictates that the applicant couple must jointly earn at least £18,600 (or have the shortfall made up by savings), with further costs for dependent children, to be eligible for a visa. Loss of income due to Covid-19—whether caused by job losses, furlough, reliance on Statutory Sick Pay, self-isolation or childcare—could therefore jeopardise applications. It is currently unclear how the rules will be applied to applicants who would otherwise meet the financial requirement had it not been for coronavirus impacting their income and livelihood: Colin Yeo told us that “We have nothing from the Home Office making any allowance for these kinds of situations”.85
65.The JCWI’s ‘Families on the Front Line’ report, published in May 2020, highlighted that over 40% of people across the UK earn less than £18,600 a year, including many key workers. This includes more than 100,000 NHS staff in England (the average annual salary for a healthcare assistant is £18,000), around half of women who work full-time in the care industry, and teaching assistants (who make up 25% of the UK teaching workforce).86
66.A letter to the Home Secretary co-signed by organisations including ILPA, the JCWI and the Runnymede Trust called for the suspension of the minimum income requirement as those affected may continue to go to work when it is not safe to do so if they are worried about their monthly income level dropping below the threshold:
For example, a couple who have been together in the UK for 2 years and are applying for a second spouse/partner visa (FLR(M)) will have to earn at least £1,550 a month in order to meet the MIR. However, if both partners fall ill or need to self-isolate, and therefore receive Statutory Sick Pay, their joint monthly income would fall to £766.80, far below the financial threshold needed in order to apply for further leave to remain in the UK as a family unit. Likewise, many who are furloughed through the Coronavirus Job Retention Scheme will end up falling below the threshold due to the 20% drop in pay they will experience.87
67.Adrian Berry told us that an alternative would be to impose the previous requirement, which required adequate maintenance and accommodation, rather than having a headline figure, but said that removing the requirement would be an easier way of reacting to the many situations people will find themselves in.88 A Home Office spokesperson was quoted as saying that the department was keeping family immigration requirements under review, including the minimum income requirement, and would make adjustments “where appropriate and necessary”.89
68.The Immigration Minister, Kevin Foster MP, said in response to a Parliamentary written question on the merits of suspending the minimum combined income requirements for spousal visas during the Covid-19 outbreak that there are a number of other ways the requirement can be met besides income from employment: “income from the couple’s investments, property rental or pension may also be taken into account, together with their cash savings”.90
69.Other Covid-19 related obstacles which may be encountered by visa-holders and applicants include: the requirement on holders of a Fiancé Visa to marry within a 6-month validity period (which may not be possible given the Government’s prohibition on social events such as weddings since 23 March91), the need to take English language tests to apply for settlement92 (English Testing Centres across the world have suspended testing either partially or completely93), and the need to maintain continuity of residence in the UK (which, for people stuck outside the UK when lockdown commenced, will be negatively affected by travel restrictions).94 The JCWI called on the Home Office to suspend all work, earning, or other requirements during this period as “Any failure to do so will create perverse incentives for individuals to travel or work, when it is not safe”.95
70.Colin Yeo called for some short-term measures to extend the leave of people in such circumstances, as well as wanting to see “some proper strategic thought and leadership from the Home Office on these issues”.96
71.Shona Dunn, Second Permanent Secretary at the Home Office, said to us that:
The Home Secretary has been very clear that any individual who finds themselves affected by circumstances outside of their control will not be disadvantaged by that. I can absolutely confirm that the Home Office will work with those individuals to make sure we are supporting them through that process.
She added that “it is important we do not disadvantage people for things they cannot control, we will absolutely work flexibly with people in those circumstances”.97
72.We welcome the Home Secretary’s promise that “nobody will be punished for circumstances outside of their control”. To ensure this the Home Office must recognise that the exceptional circumstances of the Covid-19 crisis will have had unexpected impacts on the ability of individuals and families to meet visa conditions. We call on the department to issue guidance to caseworkers stating that they should exercise flexibility when considering applications which, on the balance of probabilities, would have met all relevant criteria had it not been for the Covid-19 crisis.
73.We consider that there are several steps the Government could take to mitigate the negative impacts of the pandemic on the ability of visa holders and applicants to meet requirements. These could include:
We call on the Home Office to consider and implement a combination of these measures to provide the appropriate flexibility required as a result of the pandemic and write to us with its conclusions. It should also ensure that where people are benefiting from this additional flexibility they are still able to remain on their current route to residency, and should not be moved onto a longer route.
74.The Home Office must be conscious of the fact that the difficulties in meeting the Minimum Income Requirement and other visa requirements are not short-term problems which will go away in a few months: the impact of the Covid-19 pandemic will affect visa holders and applicants for the foreseeable future. The Home Office therefore needs to conduct a thorough review of its policy on the Minimum Income Requirement and how the acceptable evidence requirements for each of the permitted income sources will be affected by Covid-19 related disruption.
75.Adrian Berry said that, while there has been some good practice in Home Office communications on Covid-19, overall there had been a “scattergun approach”: “There is no clear, coherent communication and no timeframe within which outstanding issues will be resolved”.98 In written evidence ILPA explained that they had been contacted by the Home Office while the department was constructing its initial guidance in January, commenting that “Reaching out to immigration practitioners in this way was a really positive, productive step which ILPA would very much encourage”. However, it claimed that communication had, in general, been “lacking”—at the time of giving evidence to us on 21 April ILPA had not received a response to a letter (containing a list of issues and recommendations) it had sent to the Home Secretary a month previously.99 ILPA added that its members had reported poor experiences with the Covid-19 telephone helpline and that the Home Office had cancelled or limited attendance numbers in meetings with stakeholders.100
76.Concerns have also been raised about the lack of clarity in guidance. Adrian Berry said that policy announcements were “ad hoc” and called for the Home Office to provide a simple single source of information and clarity.101 Colin Yeo said “We need some law and some clear rules on this, so that we can be clear with our clients and our clients can—at least in theory—access information about what their position is”:102
If we are struggling to understand what is going on and what these announcements cover, then the migrants who are personally affected will have no idea, basically, what is going on.103
77.In written and oral evidence ILPA highlighted concerns about the publication of important information on Government webpages. It said that there is no single source of information—rather a series of notices or pieces of guidance have been placed online—and when these pages are updated previous versions are not being retained anywhere that is easily accessible to users.104 It emphasised the importance of being able to identify clearly what policies were in place on any given date: for example, extensions of leave were automatic in the February 2020 version of the guidance, but when updated and expanded in March the guidance required an application by the individual. Colin Yeo told us:
We are used to a system of laws, where there are various different legal instruments set out that record what you are supposed to do, what the minimum requirements are and so on. As lawyers, that is our reference point and we can advise our clients appropriately and they have been interpreted by the courts and so on.
At the moment we do not really know what is going on because we have these informal notices that change day by day on the Government website. It is a very complicated immigration system, so I would say there is perhaps an enhanced duty on the Home Office to be particularly clear about its communications. It is also a situation where people are aware that there are dire consequences if they get things wrong, so the slightest mistake in an immigration application can make you an overstayer and it is very difficult to recover your lawful status if you end up in that situation.105
Adrian Berry called for the creation of a “single, central focal point where all information is required, where all changes to policy are recorded”.106
78.Witnesses told us that other guidance being provided to stakeholders by the Home Office has not been published online, while “ad hoc policy” is also emerging through lawyers contacting the Home Office directly for information.107 These forms of information gathering and clarification have revealed key information which is not available elsewhere and has sometimes varied from published guidance. In written evidence ILPA said:
While it is of course extremely useful for the Home Office to contact stakeholders directly with updates, care must be taken to ensure that information is publicly available, and is not solely distributed by email to stakeholders, as this will never have the reach of information that is published on GOV.UK.
They recommended that the Home Office send out daily emails containing updates (as is done by other Government departments), which should be published online for maximum accessibility and transparency.108
79.Shona Dunn, Second Permanent Secretary at the Home Office, told us that “We are doing everything we possibly can [ … ] to ensure we are providing that information to people who, as you say, will have very varying circumstances to deal with and will need support with that”. She said that the Covid-19 helpline had (as of 29 April) dealt with around 50,000 email inquiries and around 25,000 phone inquiries, and that the Home Office had been focusing on urgent, exceptional or compassionate casework, and that associated with the most vulnerable:
For example, since the lockdown began, we have handled around 600 emergency and compassionate passport application cases. We have handled a significant number of visa requests for essential travel and for status purposes. We have also ensured that, as far as possible, we have kept our services available for priority areas such as, for example, the Windrush compensation scheme and EUSS [EU Settlement Scheme] applications. There are a variety of ways in which we are endeavouring to ensure that those who are most concerned or most at risk are still being serviced by our folk.109
80.We understand that this is an unprecedented time and that it is difficult to introduce new policies with the rapidity with which they have been required. However, at such a time adequate communication between the Government, legal professionals and the public is vital. The Government needs to know the concerns of the legal community and the issues which are being encountered; legal professionals need certainty so that they can advise clients appropriately; and visa holders and applicants need to know that their situations are being addressed.
81.The Home Office must ensure that clear, unambiguous and up-to-date guidance is made publicly accessible on the Government’s website, and that previous versions of guidance are also available for reference. Informal lines of communication between the Home Office and immigration law practitioners are welcome, but they cannot be a substitute for making policy statements available and accessible to the public at large.
82.The Covid-19 crisis has also had an impact on applications to the EU Settlement Scheme (the registration process for UK-resident EU citizens to confirm their legal status in the UK).
83.The telephone helpline for enquiries related to the EU Settlement Scheme was closed between late March and early May (although emails to the Settlement Resolution Centre were still answered), and centres where ID documents can be scanned remain closed. Many organisations which provide outreach services and support in making applications have had to pause or reduce activities. The Home Office was not accepting submissions of documents to prove identity or nationality by post until 22 May, meaning that applications could only be made using the EU Exit: ID Document Check app for most of the lockdown period. It has also said that “There will be delays in processing your application due to coronavirus (COVID-19)” with new applications taking longer than usual during this “challenging time”.110
84.However, despite calls for the application deadline to be extended to take into account the difficulties people will face in making applications in this period111—Adrian Berry told us it should be extended by the equivalent amounts of months lost as a result of the virus, if not more112—the Home Secretary told us that “we see no reason to extend the deadline when there’s still over a year to apply”.113
85.She added that “support has not stopped”, and that the Home Office is still receiving approximately 2,000 applications every day, which is “testament to the ways of working around this, and the fact that communication avenues are open”.114
86.As our predecessor Committee highlighted in a 2019 report on the EU Settlement Scheme, there are concerns that many groups of people will struggle to apply to the Scheme before the deadline.115 One such group is children and young people in care and care leavers. A recent study by The Children’s Society found that local authorities have only identified 3,612 EEA children in care or care leavers across the UK, contrasted with a Home Office estimate of around 9,000. Of these, only 730 have had applications made for them, and only 404 (11% of those identified) have received status under the Scheme. Reasons for this could include the complexity of many cases, the lack of capacity of social workers and local authorities, or local authorities’ lack of understanding of the requirement to support children in their care to apply.116
87.The Home Office published new guidance for local authority and health and social care trust staff on 30 April 2020, which set out the role of local authorities and health and social care trusts in ensuring that EU and EEA looked after children and care leavers apply to the EU Settlement Scheme. Among others it listed as “mandatory obligations”:
88.As of 30 April 2020, 3,220,100 applications to the EU Settlement Scheme had been concluded, with 57.6% of applications resulting in a grant of settled status and 41.3% resulting in a grant of pre-settled status.118 The number of applications received in March was 67,300, down from 125,000 in March and 235,000 in February.119
89.It is to the Home Office’s credit that more than three million grants of status under the EU Settlement Scheme have been made with more than a year to go to the deadline. However, our concern has always been for vulnerable people and others who will find it difficult to apply, and in many cases it will be people in these groups who will be particularly affected by impacts of Covid-19. Once the crisis abates, we call on the Home Office to step up its efforts to support those who have not yet applied to the EU Settlement Scheme to do so. We call on the Home Office to provide us with details—updated as a result of the pandemic—of the measures it is taking to identify and provide support to individuals who are yet to apply for status. We also call on the Home Office to explain clearly the approach it will take to late applications from those who may not have known they were required to apply to the scheme, and what work it will undertake, if any, to assess the numbers of eligible citizens who have not yet applied.
90.We are particularly concerned about the reports of low rates of applications on behalf of children and young people in care. We recommend that local authorities increase efforts to identify young people in their care who are required to apply under the EU Settlement Scheme. We hope that the new guidance recently published by the Home Office, which we welcome, assists with this process.
91.We recommend that, once they are identified by local authorities and health and social care trusts, the Government make automatic grants of settled status for all children in care and care leavers.
92.We call on the Home Office to set out its position on the legal position of those with pre-settled status.
93.Additionally, as was raised with us in evidence and in a letter from the3million to the Government,120 individuals who have been granted pre-settled status under the EU Settlement Scheme are not automatically entitled to Universal Credit. While a grant of pre-settled status gives the individual a right to reside in the UK, this right to reside is expressly excluded from the right to reside regulations that govern Universal Credit by Regulation 9(3)(c)(i) of the Universal Credit Regulations 2013.121 This means that, to be entitled to Universal Credit, the individual must prove a second right to reside under EU law, such as being a worker. The3million claimed that this appears to contravene the UK’s obligations under the Withdrawal Agreement, and Colin Yeo told us that this policy may force people to go out and work, contrary to public health measures during the pandemic.122
94.‘No recourse to public funds’ (NRPF) is a condition attached to certain immigration statuses that bars migrants from accessing most state-funded benefits, tax credits and housing assistance. Most non-EEA national migrants with temporary permission to remain in the UK have ‘no recourse to public funds’.
95.There has been concern over the effect of NRPF restrictions during the Covid-19 crisis. Written evidence jointly submitted to the Committee by a group of nine refugee and asylum organisations stated that “Preventing people from accessing public funds and services is contradictory to all public health measures and endangers individuals and wider society”;123 the No Recourse to Public Funds Network claimed that “Failing to allow access to benefits for people with no recourse to public funds whose income is affected by the pandemic is likely to lead to increased destitution and homelessness”;124 and Project 17, an organisation which works to end destitution amongst migrant children, reported that people with no recourse to public funds “are on the sharp end of the COVID-19 pandemic”:
The families we work with are facing homelessness & destitution without any safety net in the midst of this global crisis.
We’re already hearing about people with autoimmune diseases who can’t take their medicine as they don’t have enough food to eat, pregnant women who are risking their health in order to work as they have no alternative & sofa surfing families being made street homeless.125
Respondents to our inquiry highlighted children of parents with NRPF conditions and women at risk of domestic abuse as groups who may be particularly vulnerable.126
96.Employment restrictions and the inability to work will put people subject to NRPF conditions at particular risk: Chai Patel of the JCWI told us that “we are hearing about people who are forced to stay working in unsafe conditions because they simply cannot afford not to”127 and Adrian Berry said that people “are forced to choose between going out to work or staying at home and being destitute unless those restrictions are lifted”.128 The JCWI said in written evidence that “People cannot self-isolate, cannot stop going to work [ … ] unless there is a real and sufficient safety net available to catch them”.129
97.Individuals can apply for ‘no recourse to public funds’ conditions to be lifted. The Government’s website (updated on 20 May 2020) states that some migrants (with family or private life visas) can apply for access to public funds if they are or are at risk of becoming destitute, if their child’s welfare is at risk due to low income, or if there are other exceptional financial circumstances (or if these three conditions existed at the time of application for the initial visa and were not evidenced).130
98.However, we were told that there are barriers to applying for NRPF conditions to be lifted: the process can take months; it is not available to all people subject to NRPF conditions; and the applicant may require immigration advice, which is not covered by legal aid and would be hard to access at this time. The Children’s Society additionally reported that the Home Office is requiring more evidence than usual, including that which is currently hard to obtain (such as written statements or documents requiring physical signatures).131 A successful application will also mean that the individual is moved from a five-year route to settlement to a ten-year route, with previous lawful residence not counting and a renewal of visas required every two and a half years. This extended route comes with additional fees of thousands of pounds, which can total tens of thousands of pounds for families.132 Chai Patel, Legal Policy Director for the JCWI, told us that “There is a strong incentive for people not to even try to make that application and instead to muddle through”.133
99.The Government has said that it has “acted decisively to ensure that we support everyone through this crisis” and is “confident that we have measures in place to support those who have no recourse to public funds”. It highlighted that many of the measures it has introduced in response to the Covid-19 pandemic are available to migrants with no recourse to public funds, including protection from evictions, mortgage holidays, the Coronavirus Job Retention Scheme and Self-Employed Income Support Scheme, and the temporary extension of eligibility criteria for free school meals.134
100.On 26 March Luke Hall MP, Minister for Local Government and Homelessness, wrote to every local authority in England asking them to house all people sleeping rough, calling on them specifically to “utilise alternative powers and funding to assist those with no recourse to public funds who require shelter and other forms of support due to the COVID-19 pandemic”.135
101.However, witnesses told us that the letter was missing clear instruction and funding, and that as a result the policy had been inconsistently applied. Andy Hewett, Head of Advocacy for the Refugee Council, said that some local authorities had been very proactive and had accommodated large numbers of people with no recourse to public funds while others were “less able to do so or less inclined to do so”, and that some people have received support as well as accommodation while others have not.136
102.We were told that the Government needs either to instruct local authorities clearly or to legally oblige them to support these people and provide the funding to do so. Chai Patel said that “there was just a general suggestion being made they should dig into their pockets somehow and step up and do it, but without any support or obligation necessarily to do so in every case”;137 Andy Hewett added that “Asking local authorities to look in their drawers for bits of spare money when they have already been subject to budget cuts, it is not surprising that it has been inconsistently applied”.138 In written evidence, Shelter recommended that the Government:
issues guidance making it absolutely clear that local authorities should provide emergency accommodation to all migrants without regularised status and who cannot access support under the Children Act 1989 and Care Act 2014. Government guidance should direct local authorities towards using powers in the Localism Act 2011 which provides local authorities with a ‘general power of competence’ to do anything for the benefit of people residing in their area, including to prevent a breach of Article 3 of the ECHR.139
103.In evidence to the Housing, Communities and Local Government Committee on the issue of homelessness in May the Minister, Luke Hall MP, told Members that:
The legal position on those with no recourse to public funds has not changed. It has not changed since the start of this crisis. It is not something new to local authorities to regularly make decisions about accommodating individuals who might be otherwise ineligible for support where there is a risk to life, for example due to extreme weather with rough sleepers. They are able to do that—provide that accommodation, provide that basic safety net of support for people if they deem it appropriate and acting within the law.140
104.Mr Hall said that money provided by the Government to enable local authorities to meet the needs of homeless people during the pandemic had been well received by local authorities, and that the Government continued to monitor the evolving situation. He emphasised that decisions on support in individual cases, including those with no recourse to public funds, were best made locally.141
105.A letter to the Home Secretary co-ordinated by Liberty, Medact and the JCWI and signed by more than 30 human rights organisations called for a suspension of ‘no recourse to public funds’ conditions, so that migrants can access necessary support if unwell or having to self-isolate.142 Similar calls have been made by respondents to our inquiry.143
106.The No Recourse to Public Funds Network echoed calls for NRPF conditions to be lifted, but said that in the event they are not the Government should ensure that accessible and clear information (about Covid-19 related schemes and what people subject to NRPF conditions are entitled to claim) is available in one place on the Gov.uk website,144 amend fee waiver and change of conditions policies to reduce the evidential burden, remove the local welfare fund from the list of prohibited public funds, and adequately fund local authorities for supporting people with no recourse to public funds.145
107.The High Court has recently found the NRPF policy “as presently formulated” in breach of Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment. This followed a case relating to a British citizen child and his single non-EEA national mother who works in the care sector.146 The mother was subject to the No Recourse to Public Funds condition in respect of her leave to remain under family and private life rules.147
108.Home Office policy stipulated that NRPF conditions might only be lifted where the individual was destitute, or where there were particularly compelling reasons relating to the welfare of a child on account of very low income, or exceptional circumstances in a person’s case relating to their financial circumstances. Following a concession by the Home Secretary that the operation of conditions in Appendix FM of the Immigration Rules “would be unlawful if it required applicants to become destitute before they could apply for the NRPF condition not to be imposed, or to be lifted”, Lord Justice Bean and Mr Justice Chamberlain concluded that:
s. 3(1)(c)(ii) of the 1971 [Immigration] Act does not authorise the imposition or maintenance of a condition of NRPF where the applicant is suffering inhuman and degrading treatment by reason of lack of resources or will imminently suffer such treatment without recourse to public funds.148
109.The judgment, published on 21 May 2020, further found that guidance to Government caseworkers had the potential to mislead caseworkers by suggesting that they had discretion whether or not to impose, or lift, NRPF conditions. The Court required the Home Office to publish an instruction confirming caseworkers were under a duty to do so, where there was an imminent risk of an applicant falling into destitution without recourse to public funds.149
110.Updated guidance was accordingly published by the Home Office on 29 May 2020, confirming that “in all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds”. The guidance document later advises caseworkers that “It is good practice to check before concluding consideration of an application where a specific request has been made for access to public funds that the risk of imminent destitution has been properly addressed”.150
111.The Court judgment referred to an operational policy instruction issued to caseworkers in April 2020 which stated that the Government was “determined to deal sympathetically and expeditiously” with individuals and families whose circumstances are adversely affected by the Covid-19 outbreak.151 In written evidence submitted to us ILPA said:
It is of concern that decision makers need to be explicitly told to provide sympathetic and expeditious decision making. In our view this should be the baseline for caseworkers, and during the pandemic a greater level of response than this is required. [ … ] The point is obvious and trite, but people should not be put in a situation where they feel forced to work in order to avoid destitution and homelessness, doing so is a public health risk.152
112.During his evidence to the Liaison Committee on 27 May, the Prime Minister said to Rt Hon. Stephen Timms MP, the Chair of the Work and Pensions Committee, that:
Clearly people who have worked hard for this country, who live and work here, should have support of one kind or another, but you have raised a very, very important point if a condition of their leave to remain is that they should have no recourse to public funds. I will find out how many there are in that position and we will see what we can do to help.153
113.Mr Timms wrote to the Prime Minister on 27 May.154 The Prime Minister’s response, dated 4 June, outlined some of the support measures available to people subject to NRPF conditions, including the Coronavirus Job Retention Scheme and Self-employed Income Support Scheme, statutory sick pay and some other work-related benefits, and Employment and Support Allowance. He also highlighted funding provided to local authorities and devolved administrations by the Government during the pandemic, the extended eligibility for free school meals, and the recent changes to the application form for changes of conditions to make it more accessible for people who need to remain at home. He said that he had written to the Home Secretary seeking information on the numbers of people subject to NRPF conditions, and that she would respond separately.155
114.The Prime Minister’s response to Mr Timms mirrored a response he gave when asked at Prime Minister’s Questions on 3 June to update the House on progress since the Liaison Committee session. The Prime Minister said then that ‘no recourse to public funds’ is “a term of art: it does not mean that they are necessarily excluded from all public funds”.156 Later, a spokesperson for the Prime Minister was asked if the comments constituted the full extent of the Mr Johnson’s pursuit of the issue, responding “That is his answer, as far as I know”.157 When asked on 8 June whether the Government would suspend the NRPF rule, the Home Secretary said “The answer is no”:
The Government have made it our priority to protect the vulnerable throughout this national emergency, but we do not believe it is necessary to suspend the NRPF condition to do so. It is right that migrants coming to the UK are financially independent; however, practical support, such as rent protections and the coronavirus job retention scheme, apply to those NRPF conditions. We have allocated more than £3.2 billion to local authorities and £750 million to charities to support the most vulnerable.
She added that “It is wrong to imply that safety nets are not in place”, noting that “There are a plethora of support packages, which, combined collectively, are based on individual needs and individual circumstances”.158
115.We are pleased that the Home Office has recognised the need to respond sympathetically to those with NRPF conditions who find themselves in difficulties owing to the pandemic and we are encouraged by the Prime Minister’s personal commitment to look into these concerns. No one should have to put their own or their loved ones’ lives at risk for fear of destitution. Throughout this report we have sought to address exceptional circumstances which call for a more compassionate response.
116.We welcome the revised guidance issued by the Home Office, clarifying the situation for caseworkers and confirming that under the family and private life rules the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution. There is scope, however, for further measures to provide reassurance and support to NRPF condition holders affected by the pandemic. There needs to be clarity that all who are prohibited from having recourse to public funds must have access to the support they need during this crisis, and funding provided to ensure that happens. The Government should immediately make arrangements for the temporary lifting of NRPF conditions during the COVID-19 pandemic. The Government should also direct local authorities to provide support where required by others who are destitute (or at risk of destitution) and who would otherwise be prohibited from accessing public funds, and it should provide funding to allow this to happen.
117.We also recommend that the Government reduce the evidential burden on individuals seeking changes in visa conditions or fee waivers as a consequence of the pandemic. It should ensure that clear guidance on the options and support available to individuals and families with NRPF conditions is consolidated and easily accessible on the Government website.
1 Home Affairs Committee, ‘Committee launches inquiry on Home Office preparedness for Covid-19 (Coronavirus)’, 12 March 2020
2 Written evidence submitted to this inquiry can be viewed on the relevant inquiry page.
3 Home Affairs Committee, First Report of Session 2019–21, Home Office preparedness for COVID-19 (Coronavirus): Policing, HC 232, 17 April 2020
4 Home Affairs Committee, Second Report of Session 2019–21, Home Office preparedness for COVID-19 (Coronavirus): domestic abuse and risks of harm within the home, HC 321, 27 April 2020
5 Letter to the Home Secretary on visa extensions for those working in social care, 14 April 2020; Letter to the Home Secretary on issues relating to NHS visa extensions, 21 April 2020; Letter from the Home Secretary on visa extensions for care workers and NHS staff, 29 April 2020; Letter to the Home Secretary on NHS visa extensions and Covid-19, 4 May 2020; Letter to the Home Secretary on visa issues affecting social care workers and Covid-19, 12 May 2020; Letter from the Home Secretary on immigration detention and NHS visa extensions, 14 May 2020; Letter to the Home Secretary on visa extensions, 22 May 2020
6 Gov.uk, ‘Visas extended for those currently unable to return home due to COVID-19’, 24 March 2020; Gov.uk, ‘Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents’, 24 March 2020
7 Gov.uk, ‘Visas extended for those currently unable to return home due to COVID-19’, 24 March 2020
8 Letter to the Home Secretary on visa extensions, 22 May 2020
9 Gov.uk, ‘Further visa extensions for those unable to return home due to coronavirus’, 22 May 2020
10 Gov.uk, ‘Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents’, 28 May 2020
11 Home Office, Statistics relating to COVID-19 and the immigration system, May 2020, 28 May 2020, p6
12 Gov.uk, ‘Visas extended for those currently unable to return home due to COVID-19’, 24 March 2020
13 Section 3C of the Immigration Act 1971 prevents a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending; Home Office, Leave extended by section 3C (and leave extended by section 3D in transitional cases), 15 January 2019, p5
16 Gov.uk, ‘Visas extended for those currently unable to return home due to COVID-19’, 24 March 2020
17 Free Movement, ‘Coronavirus and the UK immigration system’
21 Qq252, 275; Countries which have announced automatic extensions to visas have included Ireland, France, Germany and Thailand; Irish Times, ‘Coronavirus: Immigration permits to be extended temporarily’, 20 March 2020; Schengen Visa Info, ‘Stranded in EU: Responsible Bodies to Extend Legal Stay & Visas in Each Member State’, 6 April 2020; Reuters, ‘Thailand extends foreigners’ visas to prevent queues and curb coronavirus’, 8 April 2020
23 Free Movement, ‘Leave in a time of corona: can the Home Office grant blanket visa extensions?’, 20 March 2020
26 There is no requirement in the Immigration Act 1971 to lay that kind of statutory instrument, nor is there a power of annulment (which would mean the statutory instrument would need to be laid); Statutory Instruments Act 1946, s5
27 The Immigration (Variation of Leave) Order 2016 (SI, 2016, No.948)
28 Q355; Letter from the Home Secretary on visa extensions for care workers and NHS staff, 29 April 2020
29 Gov.uk, ‘NHS frontline workers visas extended so they can focus on fighting coronavirus’, 31 March 2020
30 The health and care professions currently included on the Shortage Occupation List for England are all jobs under the Standard Occupational Classification for biological scientists and biochemists, medical practitioners, psychologists, medical radiographers, occupational therapists, speech and language therapists, nurses, and paramedics; Gov.uk, ‘Immigration Rules Appendix K: shortage occupation list’, as at 4 June 2020
31 House of Commons Library, ‘NHS staff from overseas: statistics’, 4 June 2020; NHS Digital, ‘HCHS staff by NHSE region, staff group and nationality, January 20 AH3323’, 7 May 2020
32 Office for National Statistics, ‘Coronavirus (COVID-19) related deaths by occupation, England and Wales: deaths registered up to and including 20 April 2020’, 11 May 2020
33 Gov.uk, ‘Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents’, 20 April 2020; Gov.uk, ‘General work visa (Tier 2)’
35 The Independent, ‘Coronavirus: Non-British care workers feel ‘forgotten’ after NHS staff granted free visa extensions’, 3 April 2020
36 Skills for Care, The state of the adult social care sector and workforce in England, September 2019, p9
37 Open letter from the Secretary of State for Health and Social Care, 28 March 2020
38 Office for National Statistics, ‘Deaths registered weekly in England and Wales, provisional: week ending 29 May 2020’, 9 June 2020; Office for National Statistics, ‘Deaths registered weekly in England and Wales, provisional’, 9 June 2020
39 Office for National Statistics, ‘Comparison of weekly death occurrences in England and Wales: up to week ending 29 May 2020’, 9 June 2020
40 Office for National Statistics, ‘Deaths registered weekly in England and Wales, provisional’, 9 June 2020
41 Public Health England, ‘COVID-19: number of outbreaks in care homes—management information’, 4 June 2020
42 National Records of Scotland, ‘Deaths involving coronavirus (COVID-19) in Scotland’, 10 June 2020
43 Scottish Government, ‘Coronavirus (COVID-19): daily data for Scotland’, 8 June 2020
44 Office for National Statistics, ‘Coronavirus (COVID-19) related deaths by occupation, England and Wales: deaths registered up to and including 20 April 2020’, 11 May 2020
45 The Guardian, ‘Ministers accused of abandoning care homes to coronavirus’, 14 May 2020
46 Skills For Care, ‘The state of the adult social care sector and workforce in England’, October 2019; Skills for Care, The state of the adult social care sector and workforce in England, September 2019, p72
47 Letter to the Home Secretary on visa extensions for those working in social care, 14 April 2020; Letter to the Home Secretary on issues relating to NHS visa extensions, 21 April 2020
49 Gov.uk, ‘Visa extensions for NHS and frontline health workers during coronavirus (COVID-19)’, 29 April 2020; Gov.uk, ‘Home Secretary announced visa extensions for frontline health and care workers’, 29 April 2020
50 Gov.uk, ‘Home Secretary announced visa extensions for frontline health and care workers’, 29 April 2020
53 Skills for Care, The state of the adult social care sector and workforce in England, September 2019, pp18, 27
54 Skills for Care, The state of the adult social care sector and workforce in England, September 2019, pp27, 72–3
63 An analysis of the Covid-19 related deaths of 106 members of NHS staff (to 22 April 2020) showed that 94% of doctors and dentists who died were BAME, as were 71% of nurses and midwives and 56% of healthcare support workers. This is despite only 44% of doctors and dentists, 20% of nurses and midwives and 17% of healthcare support workers in the health service being from BAME backgrounds; HSJ, ‘Exclusive: deaths of NHS staff from covid-19 analysed’, 22 April 2020
64 HSJ, ‘At least 27 nationalities among NHS staff killed by covid’, 19 May 2020
65 HSJ, ‘Exclusive: deaths of NHS staff from covid-19 analysed’, 22 April 2020
68 Letter to the Home Secretary on visa issues affecting social care workers and Covid-19, 12 May 2020
69 Gov.uk, ‘Home Office extends bereavement scheme to NHS support staff and social care workers’, 20 May 2020
70 Those employed by providers “where some of the funding is public for the care of the service users”.
71 Department of Health and Social Care, ‘New guarantee on death in service benefits for frontline health and social care staff during pandemic’, 27 April 2020
72 Most non-EEA nationals and dependants are required to pay the charge if they are applying to come to the UK for longer than six months or if they are applying from within the UK for temporary permission to stay. Visitors, applicants for Indefinite Leave to Remain and EEA citizens resident before 31 December do not have to pay. Certain applicants are also exempt, including victims of slavery or trafficking, children taken into care, and dependants of armed forces personnel; House of Commons Library, ‘The Immigration Health Surcharge’, 3 June 2020
73 Gov.uk, ‘Migrant ‘health surcharge’ to raise £200 million a year’, 19 March 2015
74 House of Commons Library, ‘The Immigration Health Surcharge’, 3 June 2020
75 Gov.uk, ‘Migrant ‘health surcharge’ to raise £200 million a year’, 19 March 2015
76 HM Treasury, Budget 2020: policy costings, March 2020, p6
77 Gov.uk, ‘General work visa (Tier 2)’
78 Gov.uk, ‘NHS frontline workers visas extended so they can focus on fighting coronavirus’, 31 March 2020
81 This figure refers to the total amount raised by the Government through the Immigration Health Surcharge (from all payees) since it was introduced in 2015; House of Commons Library, ‘The Immigration Health Surcharge’, 3 June 2020
82 House of Commons Hansard, ‘Prime Minister’s Questions’, 20 May 2020
83 BBC News, ‘NHS fees to be scrapped for overseas health staff and care workers’, 21 May 2020
84 Gov.uk, ‘Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents’, 14 April 2020
86 Joint Council for the Welfare of Immigrants, Families on the Front Line, May 2020
87 JCWI, ‘Protecting families at risk due to COVID-19: Our joint letter to the Home Secretary’, 8 April 2020
89 The Independent, ‘‘Coronavirus has paralysed us’: Families face being split as they no longer meet visa income requirement’, 9 April 2020
91 Gov.uk, ‘Staying at home and away from others (social distancing)’, 29 March 2020; BBC News, ‘Coronavirus: UK lockdown extended for ‘at least’ three weeks’, 16 April 2020
93 Gov.uk, ‘Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents’, 20 April 2020; IELTS, ‘COVID-19: Information for our global test taker community’, 24 April 2020
104 ILPA provided a timeline of updates in their written submission of evidence; Immigration Law Practitioners’ Association (COR0040); Qq240, 246 [Adrian Berry]
110 Free Movement, ‘Coronavirus and the UK immigration system’; @cldesira tweet, 29 March 2020; Gov.uk, ‘EU Settlement Scheme: current estimated processing times for applications’, 27 March 2020; @DannyShawBBC tweet, 2 April 2020.
111 Q269 [Colin Yeo]; Crisis (COR0003); Homeless Link (COR0012); Shelter (COR0069); The New European, ‘Lib Dems call for EU settlement scheme deadline to be extended as applications drop’, 17 April 2020
115 Home Affairs Committee, Fifteenth Report of Session 2017–19, EU Settlement Scheme, HC 1945, 30 May 2019
116 The Children’s Society, ‘Thousands of EU children at risk of becoming undocumented’, 27 April 2020
117 Home Office, EU Settlement Scheme: Looked-after children and care leavers: local authority and health and social care trust guidance, April 2020
118 The remaining 1.1% of applications (36,700) were either refused, invalid, withdrawn or void.
119 Home Office, EU Settlement Scheme Statistics, April 2020, 21 May 2020, p5; Home Office, EU Settlement Scheme Statistics, March 2020, 16 April 2020, p5; Home Office, EU Settlement Scheme Statistics, February 2020, 19 March 2020, p5
120 Q270 [Adrian Berry]; Letter from the3million to the Secretary of State for the Home Department and the Secretary of State for Work and Pensions, 19 April 2020; the3million (COR0050)
121 Which states, “a right to reside does not include a right which exists by virtue of, or in accordance with […] a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—(i)Appendix EU to the immigration rules”; The Universal Credit Regulations 2013 (SI, 2013, No. 376), Regulation 9
125 @Project17UK tweet, 27 March 2020
130 Gov.uk, ‘Coronavirus (COVID-19): get support if you’re a migrant living in the UK’, 23 April 2020; Gov.uk, ‘Application for change of conditions of leave to allow access to public funds if your circumstances change’, 3 April 2020
132 Q261 [Colin Yeo]; Q262–3 [Adrian Berry]; Q297 [Chai Patel]; No Recourse to Public Funds Network (COR0081)
134 Home Office, ‘Factsheet: No Recourse to Public Funds (NRPF)’, 5 May 2020
135 Letter from Luke Hall MP to local authority leaders, 26 March 2020
140 Evidence taken by the Housing, Communities and local Government Committee, ‘Impact of COVID-19 (Coronavirus) on Homelessness and the Private Rented Sector’, HC 309, 11 May 2020, Qq42–5
141 Evidence taken by the Housing, Communities and local Government Committee, ‘Impact of COVID-19 (Coronavirus) on Homelessness and the Private Rented Sector’, HC 309, 11 May 2020, Qq42–5
143 See: Asylum Matters et al (COR0016); The Children’s Society (COR0045); End Violence Against Women Coalition (COR0063); Shelter (COR0069); Jesuit Refugee Service (COR0070)
144 The organisation noted that it had published its own factsheet and web information to inform people about their rights and entitlements due to the lack of formal Government information.
147 Free Movement, ‘Part of no recourse to public funds policy declared unlawful: full judgement out’, 27 May 2020
148  EWHC 1299 (Admin), 21 May 2020, para 61
149  EWHC 1299 (Admin), 21 May 2020, paras 76–77
150 Home Office, Family Policy: Family life (as a partner or parent), private life and exceptional circumstances, Version 7.0, 29 May 2020, pp87–91
151  EWHC 1299 (Admin), 21 May 2020, para 31
153 Oral evidence taken by the Liaison Committee, HC 426, 27 May 2020, Q68
157 The Independent, ‘Boris Johnson quickly drops pledge to explore extra help for migrants left destitute by benefit rules’, 3 June 2020
Published: 15 June 2020