Clarifying the Limits of Exceptional Assurance: Distinguishing Regularised from Unregularised Overstaying

Introduction

The case of Seerangan v Secretary of State for the Home Department ([2025] EWCA Civ 354) concerns an Indian national, the Appellant, who entered the UK on a student visa during the Covid-19 pandemic. His visa expired on 30 January 2022, and he remained in the UK, thereby becoming an overstayer. The Appellant later sought protection by requesting an "exceptional assurance" (EA) under the Home Office’s Coronavirus Exceptional Assurance (EA) Policy. The EA Policy was designed to provide temporary protection to non-UK nationals who could not depart the UK due to pandemic-related travel restrictions. The Appellant’s case centered on whether, by virtue of the EA Policy and the accompanying UKVI letter granting a short-term assurance, he should be treated as if he were not an overstayer when he applied for leave to remain as a Tier 2 skilled worker. This case raised complex issues regarding the distinction between “regularised” and “unregularised” overstaying, the interpretation of policy language in both the official guidance and in standard-form communications, and the role of legitimate expectation based on the wording in the UKVI letter.

Summary of the Judgment

The Court of Appeal dismissed the Appellant’s appeal, holding that he did not qualify for the protection of the EA Policy because he was an “unregularised” overstayer. According to the EA Policy, a migrant must have either a current visa, leave to remain, or a prior EA in force to be eligible for additional time under the policy. The court agreed with the reasoning that the Appellant’s failure to regularise his status at the time his visa expired disqualified him from obtaining a full EA. Although the UKVI letter provided a “short-term assurance,” this assurance did not create a clear and unambiguous undertaking to disregard his prior period of overstaying. The judgment emphasized that the protective benefits of the EA Policy are available only to regularised overstayers—those who timely acted by applying for an EA—and that permitting someone to later rely on such an assurance would undermine the policy’s structured approach.

Analysis

Precedents Cited

A key precedent cited in the judgment was Re Finucane [2019] UKSC 7, where Lord Kerr explained that a clear and unambiguous undertaking by a public authority creates a legitimate expectation that should not be departed from lightly. In Seerangan, the Court examined whether the UKVI letter amounted to such an undertaking. The reference to Re Finucane shaped the discussion on legitimate expectation, but the court ultimately found that the letter’s wording, considered in its full context, was not intended to extend the protection of the EA Policy to unregularised overstayers.

Legal Reasoning

The court’s legal reasoning was structured around three principal issues:

1. Eligibility under the EA Policy: The Court emphasized that the EA Policy clearly requires that an applicant must be covered by a valid visa, current leave, or an existing EA when submitting their request. The Appellant’s failure to act at the time his visa expired meant that he did not qualify as a “regularised” overstayer, and his subsequent claim did not fit the conditions set out by the policy.
2. Interpretation of the UKVI Letter’s Assurance: Although the short-term assurance in the UKVI letter mentioned that the recipient “will not be regarded as an overstayer or suffer any detriment in any future applications” during its currency, the Court scrutinized this provision alongside other parts of the letter and the broader EA Policy framework. It stressed that this did not constitute an unequivocal promise to disregard past overstaying. Thus, the assurance’s effects were limited and did not transform the Appellant’s status.
3. Reliance on the Principle of Legitimate Expectation: Drawing on Re Finucane, the court considered whether the Appellant could rely on a legitimate expectation created by the letter. However, the judgment noted that the standard format of the letter, its distanced reference to the specifics of the Appellant’s case, and its contextual embedding within the EA Policy meant that no binding promise existed to neutralize the consequences of prior unregularised overstaying.

In essence, the reasoning clarified that discrete policy measures, such as the EA Policy and its associated communications, are designed for orderly regulation. The benefits provided by the policy are intended for those who have followed the prescribed process – a process which the Appellant failed to initiate promptly.

Impact on Future Cases and the Area of Immigration Law

The judgment has significant implications for the interpretation and application of exceptional assurance mechanisms during special circumstances like a pandemic. By distinguishing between regularised and unregularised overstayers, the court reinforces the principle that protective measures under immigration policy are not to be retrospectively extended to individuals who delay taking the proper administrative steps. Future cases will likely reference this decision when assessing claims based on the EA Policy, ensuring that applicants receive clear guidance on the necessity of timely action. The ruling underscores that standard-form communications and policy documents must be interpreted in light of their intended procedural function and within the framework in which they were created.

Clarification of Complex Legal Concepts

• Regularised vs. Unregularised Overstaying: The term “regularised” in this context refers to individuals who, upon their visa’s expiry, applied for an EA and thereby confirmed their status temporarily. Conversely, “unregularised” overstayers, like the Appellant who did not act when his visa expired, are not afforded the same protection.
• Exceptional Assurance (EA) vs. Short-term Assurance: While a full EA (typically covering a period such as ten weeks) is granted to those meeting the policy’s criteria, a short-term assurance (commonly of two weeks) is a fallback provided to non-qualifying applicants. Importantly, neither constitutes a grant of leave. Instead, they are defensive measures to temporarily minimize the adverse consequences of overstaying.
• Legitimate Expectation: This legal doctrine compels public authorities to honour clear promises or representations made to individuals. However, the court emphasized that a legitimate expectation must be unequivocal and contextually consistent. The UKVI letter, with its boilerplate language and inherent limitations, did not create a binding promise to ignore the history of unregularised overstaying.

Conclusion

In Seerangan v Secretary of State for the Home Department, the Court of Appeal provided a detailed analysis clarifying the boundaries of the Exceptional Assurance Policy. The judgment affirms that the benefits of the EA Policy are reserved for those who responsibly take steps to regularise their stay at the appropriate time. The court rejected the argument that a short-term assurance letter could retroactively expunge a lengthy period of unregularised overstaying. This decision not only underscores the necessity for applicants to act promptly in response to changing immigration circumstances but also offers guidance on interpreting standard policy documents and letters that are circulated by immigration authorities.

The significance of this judgment extends beyond the individual case: it sets a clear precedent by confirming that the structured processes established by immigration policy must be followed, and that any deviation from prompt action will not be retroactively remedied by later assurances. As such, this case serves as a crucial reminder to both legal practitioners and applicants that the law will strictly uphold procedural requirements in the context of immigration regulation.