It is interesting to note that in a normal course, visitors and students at the end of their course generally would not have any legal basis or requirement to extend their stay in the UK. It is equally pertinent that the people also do not overstay their visa as it comes under an immigration offence including working without a legal status. There could be cases where even the landlord would hand an eviction notice.
It does raise the question as to why such an automatic extension not be afforded to the EU nationals due to Brexit. Apart from the current situation, there hasn’t been an occasion in the past where such an automatic leave to remain would be granted voluntarily.
This action of the Home Office demonstrates that it can contemplate a declaratory system of leave to remain something that has been resisted for EU citizens living in the UK, as opposed to having each of them apply individually.
Perhaps one of the reason for such an omnibus order would be that whilst the Chinese and other country visa holders are already on Home Office database along with their immigration histories – the European nationals who are in the UK are not recorded anywhere.
This action also raises an important fact, that is the Home Office empowered to automatically extend visas? In the present situation it would appear that the Home Office has used section 3(3)(a) of the Immigration Act 1971 to carry out the automatic extensions – but as a normal process such extensions are granted pursuant to an application being made, the section does not provide any specific procedural requirement.
The section 3 is to be read in line with the subsequent section 4 of the Immigration Act 1971 which states that immigration officers give or refuse leave to enter on the basis that this be exercised by notice in writing given to the person affected.
On a purely technical basis as there is no formal written notice and merely a declaration on the gov.uk site, it surely cannot qualify that an application has been made, as the note on the gov.uk site has not legal effect.
Given the uncertainty and the ‘fog of war’ at the moment it may appear that all is good – however it would be advisable that the Home Office regularise this inconsistency, especially given the penchant of the caseworkers to apply technicalities when deciding paperwork in the future.