VISA EXTENSIONS FOR NHS AND FRONTLINE HEALTH WORKERS DURING CORONAVIRUS (COVID-19): irrational and unreasonable exclusion of cleaners, hospital porters and other key workers

On 31 March 2020 the Home Office announced a free one-year visa extension for some staff in the NHS and care sectors, and their family members. This means they will not have to pay the application fee or the immigration health surcharge. The extension is automatic in that there is no application required; however, those eligible must send their current biometric residence permits (BRPs) to the Home Office to obtain the extension.

The requirements for the extension are as follows:
1. Your visa is due to expire between 31 March 2020 and 1 October 2020. This applies to all visas and is not limited to sponsored migrant workers on Tier 2 or Tier 5 visas.
2.You or your family member works for the NHS or an independent healthcare provider in an “eligible profession”, as listed on the government website:

The government website states that “your employers will tell UK Visas and Immigration (UKVI) if you’re eligible for the extension”, and it is only after the employer gives the green light that you should send your and your family’s BRPs to the Home Office.
This extension is welcome. A visa extension for a family of three, including the immigration health surcharge, could easily amount to £3000 ++. The actual cost would of course depend on the visa and the number of dependents, and this is excluding legal fees. It is widely acknowledged, including by judges of the Court of Appeal and Supreme Court, that immigration law is one of most complex and fastest developing areas of law. Legal representation is therefore often vital to a successful application, which then adds to the costs.
It therefore feels instinctively unreasonable that the list of eligible professionals does not include care workers and support staff, such as porters and cleaners.

This exclusion can be contrasted with the bereavement scheme, which provides an automatic grant of indefinite leave to remain to family members of all NHS health and social care workers who have died as a result of contracting coronavirus.
The apparent inconsistency in approach between the one-year visa extension scheme and bereavement extension is in fact in keeping with how immigration law and policy has developed in the UK, and in keeping with government plans for the new immigration system post-Brexit. Increasingly, those wanting to remain in the UK who are not on employer-sponsored visas and who do not meet the requirements of the Immigration Rules (including not earning enough), must evidence some kind of exceptional circumstance – the terms used are “insurmountable obstacle”, “significant difficulty”, “unjustifiably harsh” and so on. Exceptionality is an acceptable narrative: these migrants are welcome, only in so far as their circumstances are at such an extreme end of the spectrum that no-one could dispute their right to stay. The extension of the bereavement scheme fits neatly into this.

On the other hand, the failure to extend the one-year visa extension to low-paid support staff and care workers is wholly in keeping with the government’s vision of the new immigration system following the end of Free Movement. This was outlined in the policy statement published 19 February 2020, “The UK Points-Based Immigration system”. The policy paper focuses on one small area of immigration – employer sponsored visas – and crucially it proposes an increase to the minimum income threshold from £20,800 to £25,600. There is no route for so called “lower-skilled workers” – in other words, those who have been designated as key workers during the COVID-19 pandemic: bus drivers, postal workers, supermarket workers, refuse collectors and of course cleaners and hospital porters, and many more.
When questioned on the exclusion, the Home Secretary told the Home Affairs Select Committee on 29 April 2020 that, ““the disparate nature of the social care sector makes it a unique challenge when making specific immigration offers” and that it is particularly difficult to “know the immigration background and status of individuals…who have not come through the Tier 2 route”.
The exclusion of NHS support staff and social care workers from the one-year visa extension scheme is arguably unlawful for the following reasons:
• Cleaners and hospital porters, and social care staff, are exposed to the same or very similar risk of contracting coronavirus as those in the list of eligible professions. Their role, in terms of protecting public health in the current crisis, is clearly comparable to those in the list of eligible professions. Various public statements from government officials, including the Home Secretary, have indicated that the purpose of the visa extension scheme is to relieve pressure from the whole of the NHS;

• The visa extension scheme is already open to those with any visa, not just those on Tier 2. It is hard to see the difference in “difficulties” presented by a nurse not on a Tier 2 visa, and a hospital porter or social care worker not on a Tier 2 visa, such that it would justify the exclusion of the latter from the scheme;

• The exclusion is arguably a breach of Article 8 and Article 14 of the ECHR. The effect of excluding low paid NHS support staff and social care staff from a visa extension is to intrude into the core of matters that go to make up family life – if they cannot afford the extension, they may become overstayers, or fall into debt, or be forced to leave the UK and thus uproot their own lives and that of their dependents.

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