Seerangan v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, an Indian national, entered the UK on 3 October 2020 on a student visa expiring on 30 January 2022. He overstayed beyond the expiry of his visa. On 14 November 2022, he requested an "exceptional assurance" ("EA") from UK Visas and Immigration ("UKVI") under the Home Office's Coronavirus Exceptional Assurance policy ("the EA Policy"), which aims to protect non-UK nationals unable to leave due to pandemic travel restrictions. UKVI denied his eligibility for an EA but granted a "short-term assurance" expiring 30 November 2022.

On 29 November 2022, the Appellant applied for leave to remain as a Tier 2 skilled worker. This application was refused on 19 December 2022 and the refusal upheld on administrative review, primarily because he was an overstayer at the time of application. The Appellant challenged this refusal by judicial review, which was dismissed by the Upper Tribunal (Immigration and Asylum Chamber) on 16 April 2024.

This appeal follows with permission granted by the Court of Appeal. The case raises questions about the effect of the EA Policy and the UKVI letter's short-term assurance on whether the Appellant should be treated as an overstayer when making his skilled worker application.

Legal Issues Presented

1. Whether the EA Policy and/or the "short-term assurance" granted in the UKVI letter prevents the Appellant from being treated as an overstayer at the time of his application for leave to remain.
2. Whether the UKVI letter gave rise to a clear and unambiguous legitimate expectation that the Appellant would not be treated as an overstayer for the purpose of an application made during the currency of the assurance.

Arguments of the Parties

Appellant's Arguments

• The EA Policy and the assurance in the UKVI letter should mean he was not treated as an overstayer when making his skilled worker application.
• The UKVI letter gave rise to a legitimate expectation, based on a clear and unambiguous undertaking, that he would not be regarded as an overstayer during the period of the short-term assurance.
• The phrase "current or most recently expired visa" in the EA Policy implies that the policy applies even to those who had already overstayed but were unable to return home due to the pandemic.
• The short-term assurance letter explicitly states that during its currency the Appellant would not be regarded as an overstayer or suffer detriment in future applications, supporting his claim of legitimate expectation.

Respondent's Arguments

• The EA Policy only applies to individuals who had current leave or a prior EA at the time of their request; it excludes overstayers who did not regularise their position when their visa expired.
• The Appellant was an unregularised overstayer and therefore not eligible for an EA under the Policy.
• The UKVI letter was a standard template refusal letter that did not create a clear and unambiguous undertaking to disregard the Appellant's overstaying for the purpose of his application.
• The reference in the letter to making applications for leave to remain does not imply that overstaying would be disregarded, but rather reflects general information applicable to those with leave or a valid EA.
• It would be irrational and inconsistent with the Policy to treat unregularised overstayers as if they had never overstayed simply because they made a late request for an EA.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the EA Policy, which distinguishes between "regularised" overstayers—those who applied for and maintained an EA from the expiry of their visa—and "unregularised" overstayers who did not. The Policy explicitly excludes unregularised overstayers from eligibility for an EA. The Appellant did not apply for an EA until over nine months after his visa expired and thus was an unregularised overstayer.

The court examined the UKVI letter granting a short-term assurance, which was not a grant of leave but a limited protection to allow time to leave or apply for leave to remain. The letter was a standard template, not tailored to the Appellant’s specific circumstances, and explicitly stated that the Appellant was not entitled to an EA under the Policy due to the absence of travel restrictions to India.

While the letter indicated the possibility of applying for leave to remain during the assurance period and stated the Appellant would not be regarded as an overstayer during that time, the court found this was not a clear and unambiguous undertaking to disregard his prior overstaying for the purpose of such an application. The court noted ambiguities and standard form drafting, and emphasised that the letter must be read in the context of the EA Policy, which does not extend such benefits to unregularised overstayers.

The court rejected the argument that the letter created a legitimate expectation that the Appellant’s prior overstaying would be disregarded. It reasoned that it would be irrational and inconsistent with the orderly process established by the Secretary of State to treat an unregularised overstayer as if they had never overstayed simply because of a late request and a short-term assurance.

The court also considered the Upper Tribunal’s reasoning, which was substantially aligned with its own analysis.

Holding and Implications

The court DISMISSED the appeal.

The direct effect is that the Appellant’s skilled worker application was correctly refused on the basis that he was an overstayer without leave at the time of application. The decision confirms that the EA Policy’s protections apply only to those who regularised their overstaying promptly by obtaining an EA, and that short-term assurances given outside the Policy do not create a legitimate expectation to disregard overstaying for immigration application purposes. No new precedent was established beyond the application of existing principles of legitimate expectation and immigration rules interpretation to the facts.