JR2025LON001504

Factual and Procedural Background

The Plaintiff is a national of China from Hong Kong born in 1991 who entered the UK on various visas between 2015 and 2019. After the Covid-19 pandemic began, the Plaintiff sought extensions via the Department's Coronavirus Exceptional Assurance ("EA") process and received successive assurances covering parts of 2020. The Plaintiff submitted an online request for further assurance on 28 October 2020. The Department emailed on 24 November 2020 about technical difficulties and asked for resubmission of specified information. The Plaintiff resubmitted information on 5 February 2021 and submitted a settlement application the same day; that settlement application was voided on 30 September 2021 when the Plaintiff varied it by lodging an asylum claim on 28 April 2021. The asylum claim was refused and the First-tier Tribunal appeal dismissed on 7 April 2024, exhausted on 21 April 2024. The Plaintiff applied on 2 May 2024 for permission to stay under the Hong Kong BN(O) route as an unmarried partner; that application was refused on suitability grounds on 10 September 2024, administrative review was sought and initially refused on 6 December 2024, then reconsidered and maintained on 13 February 2025. The Plaintiff sought judicial review; permission was granted on the papers by Judge Kamara on 27 June 2025. Judge Hoffman heard the matter and issued the judgment dated 7 January 2026.

Legal Issues Presented

1. Whether the Defendant failed to correctly apply paragraph 39E of the Immigration Rules and the coronavirus Exceptional Assurance policy guidance in assessing the Plaintiff's overstaying and suitability under the BN(O) route.
2. Whether the Defendant failed to correctly apply the Hong Kong BN(O) guidance (in particular the one-month/reasonable-period provision after asylum claims).
3. Whether the Defendant's approach to withdrawing and remaking the administrative review breached legitimate expectation and amounted to an abuse of process.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant misapplied paragraph 39E and the EA policy and therefore should have disregarded the Plaintiff's periods of overstaying covered by EAs, which would have affected suitability under the BN(O) route.
• The Plaintiff asserted that the 28 October 2020 online request was made in time and that the 24 November 2020 Department email invited resubmission in relation to that existing request, such that protection continued until the Department's 16 February 2021 refusal of the request.
• If paragraph 39E did not assist, BN(O) guidance entitled the Plaintiff to be treated as having applied within a reasonable period (generally one month) after the asylum appeal dismissal.
• The withdrawal and substitution of the first administrative review amounted to a breach of legitimate expectation because the Plaintiff expected a genuine reconsideration of identified errors.

Defendant's Arguments

• The Defendant maintained the Plaintiff became an overstayer when her visit visa expired on 16 April 2020 and did not have valid leave after 31 October 2020; paragraph 39E did not apply to later periods.
• The Department initially denied a record of the 28 October 2020 request but later accepted a request had been made; it contended the 24 November 2020 email was a generic invitation to make a new request (not to resubmit paperwork for the existing one) and that the Plaintiff's failure to respond promptly meant the 5 February 2021 contact was a fresh request.
• The BN(O) guidance did not apply to the Plaintiff's circumstances (the Defendant submitted the guidance did not cover cases like the Plaintiff's).
• The Defendant contended the withdrawal and remake of the administrative review was a legitimate exercise because the Department genuinely intended to revisit the decision and was not unfairly seeking tactical advantage.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal analysed the factual record and the EA policy. It identified two EA phases as described in Seerangan and noted the Department's procedural change from automatic extensions to an assurance request process. The Tribunal found the Plaintiff had submitted an online request on 28 October 2020 and that the Department's 24 November 2020 email expressly acknowledged receipt and invited resubmission of information due to technical difficulties. The Tribunal rejected the Defendant's late contention that the 24 November email was a generic invitation to make a new request, noting no supporting witness evidence was produced.

The Tribunal applied ordinary principles of interpretation to the 24 November email and held that it was a request to supplement an existing 28 October application, not an invitation to make a fresh application. Because the email gave no deadline or consequences for non-response, the Tribunal rejected the post hoc imposition of a two-week deadline and held the earlier request had not been abandoned or disposed of without notice.

On that basis the Tribunal concluded the 5 February 2021 contact was a resubmission in response to the Department's request and that the refusal dated 16 February 2021 was a decision on the 28 October 2020 request. Consequently, the Plaintiff remained covered by exceptional assurance until 16 February 2021 and was a "regularised overstayer" during the relevant periods. The Tribunal held the Defendant's decision of 10 September 2024 proceeded on an erroneous factual basis (omitting the 28 October 2020 request) and therefore failed to apply paragraph 39E and the EA/CEC guidance correctly. The administrative review likewise repeated the error and was vitiated for the same reason.

The Tribunal considered Ground 2 (BN(O) guidance) but found it unnecessary to decide it because Ground 1 succeeded; it nonetheless accepted the Defendant's construction that the BN(O) guidance did not apply to the Plaintiff's position. On Ground 3 (legitimate expectation/abuse of process) the Tribunal found no clear and unambiguous undertaking had been given when the Defendant withdrew and remade the administrative review, and accepted the Defendant's explanation that the withdrawal was made genuinely to revisit the material.

Holding and Implications

The claim is allowed in respect of Ground 1; Grounds 2 and 3 are dismissed.

Implications:

• The Tribunal determined the Defendant's decision of 10 September 2024 was materially flawed in fact and law for failing to recognise that the Plaintiff's 28 October 2020 exceptional assurance request remained pending until refusal on 16 February 2021, and for failing to apply paragraph 39E and the Department's EA/CEC guidance.
• The administrative review decision of 13 February 2025 was also vitiated for not addressing those errors.
• No broader constitutional or guidance challenge was upheld; the Tribunal identified and corrected the Defendant's errors as applied to this case. The judgment did not purport to set a new precedent beyond applying existing authorities to the facts found.