Dhasarathan Seerangan v Secretary of State for the Home Department

An exceptional assurance under the Coronavirus Exceptional Assurance policy does not grant immigration leave. The recipient remains an overstayer, although the policy may protect a qualifying person from adverse consequences and disregard overstaying when an in-country application is made during the assurance. The policy distinguishes between regularised overstayers, who sought assurance when their leave expired and renewed it as necessary, and unregularised overstayers, who did not. A standard-form letter granting a short-term assurance to a non-qualifying overstayer will not create a substantive legitimate expectation unless it contains a clear and unambiguous undertaking that the overstaying will be disregarded for the proposed application. The letter must be read as a whole, in the context of the policy and the recipient’s circumstances.

The appellant, an Indian national, entered the United Kingdom on a student visa which expired on 30 January 2022. He remained in the United Kingdom without leave and, in November 2022, requested an exceptional assurance under the Home Office’s Coronavirus Exceptional Assurance policy. UK Visas and Immigration refused a full assurance because there were no relevant restrictions on travel to India, but granted a short-term assurance until 30 November 2022.

The appellant then applied in the United Kingdom for skilled-worker leave. The application was refused because he was an overstayer and the refusal was maintained on administrative review. Mrs Justice Thornton, sitting in the Upper Tribunal (Immigration and Asylum Chamber), dismissed his judicial review claim on 16 April 2024. The central issue on appeal was whether the policy or the short-term assurance meant that his overstaying had to be disregarded, or whether the letter created a clear and unambiguous legitimate expectation to that effect.

1. Appeal dismissed. The appellant was an unregularised overstayer. His visa had expired more than nine months before his request, and he had neither current leave nor an existing exceptional assurance. He therefore did not satisfy paragraph 2 of the policy and was not entitled to a full exceptional assurance.
2. The policy distinguishes between regularised and unregularised overstaying. An exceptional assurance is not a grant of leave, so its beneficiary remains an overstayer under the Immigration Rules. For a person who has properly regularised their position, the policy provides protection against the usual adverse consequences of overstaying and permits the period to be disregarded for an application for leave made during the currency of the assurance. An unregularised overstayer receives no equivalent protection under the policy.
3. The short-term assurance granted under the unpublished practice did not contain a clear and unambiguous undertaking that the appellant’s earlier unregularised overstaying would be disregarded for his skilled-worker application. The reference to applying for leave during the assurance period could not bear that consequence by itself. The letter was standard-form, poorly drafted and had to be read as a whole, in the light of the published policy and the appellant’s irregular circumstances. Its references to not being regarded as an overstayer and to future applications were capable of being confined to regularised overstaying.
4. The legitimate-expectation principle stated in Re Finucane [2019] UKSC 7 applied, but the necessary clear and unambiguous undertaking was absent. The Secretary of State therefore was not required to treat the appellant as other than an overstayer for the purpose of his application.
5. Lord Justice Dingemans and Lady Justice Falk agreed with Lord Justice Underhill.

• Court of Appeal (Civil Division): Appeal dismissed. The court held that the policy did not protect an unregularised overstayer and that the short-term assurance did not create a clear and unambiguous legitimate expectation that the overstaying would be disregarded.
• Upper Tribunal (Immigration and Asylum Chamber): Mrs Justice Thornton dismissed the judicial review claim on 16 April 2024.