Tribunal decisions

The decision

Case No: JR-2025-LON-001504
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

7th January 2026
Before:

UPPER TRIBUNAL JUDGE HOFFMAN

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Between:

THE KING
on the application of
SHUK WAI TSANG
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr D Jones
(instructed on a direct access basis), for the applicant

Ms K Howarth
(instructed by the Government Legal Department) for the respondent

Hearing date: 27th November 2025

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J U D G M E N T

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Judge Hoffman:

1. The applicant seeks judicial review of the respondent’s administrative review decision dated 13 February 2025 upholding her decision dated 10 September 2024. That decision refused the applicant’s application dated 2 May 2024 for permission to stay as the unmarried partner of a British National (Overseas) status holder under the Hong Kong British National (Overseas) route (BN(O)).

2. For the reasons set out below, the application for judicial review is granted in respect of Ground 1 only.

Background

3. The applicant is a national of China from Hong Kong born in 1991. She first entered the UK on 15 September 2015 as a Tier 5 Youth Mobility migrant and departed on 16 November 2018. She returned on 16 October 2019 with a six-month visitor visa, which expired on 16 April 2020.

4. Following the onset of the Covid-19 pandemic, the applicant sought to regularise her stay. On 25 March 2020, she requested an extension due to flight cancellations. The Home Office granted successive concessions:

a. 8 April 2020: Coronavirus Extension Concession, extending leave until 31 May 2020.

b. 1 June 2020: Further Coronavirus Extension Concession, extending leave until 31 July 2020.

c. 28 September 2020: Coronavirus Exceptional Assurance, backdated to 1 August 2020, extending leave until 31 October 2020.

5. On 28 October 2020, the applicant requested a further Exceptional Assurance before the expiry of the previous concession. On 24 November 2020, the respondent emailed the applicant, acknowledging technical difficulties with the online form, and invited her to resubmit her information. The applicant responded on 5 February 2021 and on the same day submitted a settlement application. The assurance request was refused on 16 February 2021 due to the pending settlement application.

6. The applicant claimed asylum formally on 28 April 2021 and was granted immigration bail. Her settlement application was voided on 30 September 2021. The asylum claim was refused on 31 October 2023, and her appeal was dismissed by the First-tier Tribunal on 7 April 2024.

7. On 2 May 2024, the applicant applied for permission to stay under the Hong Kong BN(O) route as an unmarried partner. The application was refused on 10 September 2024 on suitability grounds. Administrative review was sought on 20 September 2024 and refused on 6 December 2024. Following pre-action correspondence, the respondent reconsidered but maintained the refusal on 13 February 2025.

The respondent’s decisions

8. In her decision dated 10 September 2024, the respondent found that the applicant did not meet the suitability requirements under paragraphs HK 2.1 and HK 2.2 of Appendix Hong Kong British National (Overseas), which state:

“HK 2.1. The applicant must not fall for refusal under Part 9: grounds for
refusal.

HK 2.2. If applying for permission to stay the applicant must not be:

(a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or

(b) on immigration bail, except where they have been placed on immigration bail after making an asylum claim in the UK.” (Underlining added)

9. The respondent maintained that the applicant did not have “valid legal leave to remain” after her Coronavirus Exceptional Assurance extension expired on 31 October 2020. In one respect, the decision is confused: it noted that the applicant had made a settlement application on 5 February 2021, which was said to have been concluded on 7 April 2024 when her appeal was dismissed by the First-tier Tribunal. In fact, that appeal concerned her asylum claim, not the settlement application, which had been voided on 30 September 2021. According to the respondent’s skeleton argument, the asylum claim was formally registered on 28 April 2021. Nothing material turns on this point. What matters is that the respondent’s position was that, by the time the applicant applied for leave to remain as an unmarried partner, she had been in the UK unlawfully for almost three and a half years and therefore could not benefit from paragraph 39E of the Immigration Rules. That provision specifies limited circumstances in which periods of overstaying may be disregarded, including where an application for leave to remain is submitted within 14 days of previous leave expiring.

10. As explained above, that decision was upheld on administrative review.

The application for judicial review

11. The applicant filed her application for permission to apply for judicial review on 12 May 2025. She raised three grounds of claim:

▪ Ground 1: The respondent failed to correctly apply paragraph 39E of the Immigration Rules and the coronavirus “exceptional assurance” policy guidance.

▪ Ground 2: The respondent failed to correctly apply the Hong Kong BN(O) guidance.

▪ Ground 3: The respondent’s approach to remaking the administrative review decision breached the applicant’s legitimate expectation and was an abuse of process.

12. Permission to apply for judicial review was granted by Upper Tribunal Judge Kamara on the papers on 27 June 2025. The respondent had initially argued that Judge Kamara’s order only granted permission on Grounds 1 and 2, but Ms Howarth now accepts in her skeleton argument that the Tribunal should consider all three grounds at the hearing. She was right to make that concession: Judge Kamara’s order does not expressly or implicitly limit the grant of permission.

Legal framework

13. While the decisions refer to the suitability requirements set out under paragraphs HK 2.1 and HK 2.2 of Appendix Hong Kong British National (Overseas), the respondent points out that it is in fact paragraphs HK 11.1 and HK 11.2 (as in force on the dates of decision) that apply to applications made by dependent partners, although the provisions are materially the same:

“HK 11.1. The applicant must not fall for refusal under Part Suitability.

HK 11.2. If applying for permission to stay the applicant must not be:

(a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or

(b) on immigration bail, except where they have been placed on such bail after making an asylum claim in the UK.”

14. Paragraphs 39E and 39F of the Immigration Rules (as in force on the date of decisions1) provided as follows:

“39E (Exception for overstayers) applies where:

(1) the application was made within 14 days of the applicant's leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or within the application, why the application could not be made in time; or

(2) the application was made:

(a) following the refusal or rejection of a previous application for leave which was made in time; and

(b) within 14 days of:

(i) the refusal or rejection of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or
(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or

(3) the period of overstaying was between 24 January and 31 August 2020; or

(4) where the applicant has or had permission on the Hong Kong BNO route and the period of overstaying was between 1 July 2020 and 31 January 2021; or

(5) the period of overstaying:

(a) is between 1 September 2020 and 28 February 2023; and

(b) is covered by an exceptional assurance.

39F For the purpose of paragraph 39E(5), “exceptional assurance” means a written notice given to a person by the Home Office stating that they would not be considered an overstayer for the period specified in the notice.” (Underlining added)

15. The Coronavirus extension concession (CEC) and exceptional assurance concession: caseworker guidance (published 9 April 2024) sets out how to consider applications with overstaying after the expiry of an exceptional assurance:

“How to consider applications with overstaying after the expiry of exceptional assurance

For guidance on how to consider applications with overstaying in the UK after the expiry of a grant of exceptional assurance see applications from overstayers.

Example
An applicant’s permission expired on 1 March 2021. Successive periods of exceptional assurance were granted from 16 February 2021 until 30 June 2022.

The applicant applied for permission as a Skilled Worker on 18 July 2022.

The applicant will be considered to have overstayed from 1 July 2022. The applicant does not have [section] 3C leave [under the Immigration Act 1971].”

Discussion and findings

Ground 1: Failure to correctly apply paragraph 39E of the Immigration Rules and the coronavirus “exceptional assurance” policy guidance

16. The applicant argues that the respondent’s decision of 10 September 2024, upheld on administrative review, failed to correctly apply paragraph 39E, read in accordance with the respondent’s coronavirus “exceptional assurance” policy (“the EA policy”), and disregard her periods of overstaying. She submits that had the respondent properly applied paragraph 39E, her BN(O) application would not have been refused under paragraph HK 11.2.

The coronavirus “exceptional assurance” policy

17. As explained by the Court of Appeal in Seerangan v Secretary of State for the Home Department [2025] 4 WLR 60, the respondent introduced the EA policy during the Covid-19 pandemic to protect individuals in the UK with limited leave to enter or remain from the adverse consequences of overstaying their visas due to the travel restrictions then in force. The policy was published on 24 March 2020 and frequently updated thereafter. As the Court explained at [9] (per Underhill LJ), there were two phases to the EA policy:

“— The ﬁrst phase ran from 24 January to 31 July 2020, with a grace period until 31 August 2020. During this phase, which coincided broadly speaking with the global closure of borders, UKVI issued automatic extensions to visas; and a general disregard of overstaying between those dates was provided for by an amendment to paragraph 39E of the Rules.

— The second phase ran from 1 September 2020 to 30 November 2022 and was ﬁrst reﬂected in the fourth version of the Guidance, published on 24 August 2020 at a time when travel restrictions were starting to lift globally. The Home Oﬃce no longer issued automatic extensions to visas but instead adopted the EA Policy, under which what were described as “exceptional assurances” were given to individuals in prescribed circumstances.”

18. Mr Jones told the Tribunal that for the second phase, the respondent had introduced an online form for applicants to use to request an assurance. However, this was abandoned due to technical issues and the respondent reverted to requiring applicants to make their requests via email to the Home Office. This is confirmed by a paragraph in the respondent’s EA policy updated on 23 November 2020. Ms Howarth did not dispute this.

19. The version of the EA policy guidance in force when the applicant submitted her 28 October 2020 request for further exceptional assurance, using the online form, was titled Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents, and had last been updated on 16 October 2020. It included the following paragraphs:

“If you are granted ‘exceptional assurance’ it will act as short-term protection against any adverse action or consequences after your leave has expired. If conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your exceptional assurance. Exceptional assurance does not grant you leave.”

[…]

If you intend to stay in the UK

If you decide to stay in the UK, you should apply for the necessary leave to remain in the UK. You’ll have to submit an application form from within the UK where you would normally need to apply for a visa from your home country.

[…]

If you have overstayed your leave

If your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. If you did not apply for an exceptional assurance by 31 August 2020 you must make arrangements to leave the UK.”

20. The respondent’s position is that the applicant became an overstayer when her visit visa expired on 16 April 2020. However, she accepts that, as the applicant was granted exceptional assurance on 8 April 2020 (valid until 31 May 2020), 1 June 2020 (valid until 31 July 2020), and 28 September 2020 (valid until 31 October 2020), her lack of leave during those periods would be disregarded under the EA policy: see Seerangan at [24]. In the respondent’s terminology, she was a “regularised overstayer”. The protection was only short-term and, once the assurance expired, any subsequent overstaying would not be disregarded under the Immigration Rules.

21. The applicant asserts that on 28 October 2020 she made in-time request for a further extension, which she argues extended the assurance pending a decision by the respondent. The respondent, however, maintains that the assurance lasted only until 24 November 2020. On that date, the respondent emailed the applicant, including the following passages relevant to this claim:

“Thank you for submitting your request for an Exceptional Assurance.

We apologise for the delay in replying. We are currently experiencing technical difficulties with the form you completed and may not have been able to process your request as a result. If you have not yet received a response to your most recent request for Exceptional Assurance please send the following information to CIHAssuranceTeam@homeoffice.gov.uk:

Full Name
Date of Birth
Nationality
Home Office, GWF or any other reference number
Current visa type
Expiry date of current visa
Reason for Exceptional Assurance request

In your email you should also attach evidence to show why you cannot leave the UK. For example, if you can’t leave the UK because you can’t find a flight before your leave/visa expires, you’ll need to submit a copy of a confirmed flight ticket. If you can’t leave the UK because you have coronavirus, you’ll need to submit confirmation of your positive coronavirus test result.
The subject header of your email should read REQUEST FOR AN
ASSURANCE.”

22. The respondent’s position evolved as the case progressed. Initially, in her summary grounds of defence, she denied having any record of the applicant’s request for an extension of exceptional assurance on 28 October 2020, although she accepted that the applicant had received the email of 24 November 2020. In her detailed grounds, following disclosure of a screenshot of the applicant’s online form, she accepted that a request had been made on 28 October 2020. Nevertheless, she maintained that the applicant’s failure to respond to the 24 November email within what she considered a reasonable period meant that the exceptional assurance did not extend beyond that date. On that basis, the applicant’s email of 5 February 2021 was characterised as a fresh request for exceptional assurance, submitted some 11 weeks after the applicant ceased to have protection under the EA policy.

23. At the hearing, the respondent advanced a further argument: that the email of 24 November 2020 did not invite the applicant to resubmit information in support of her 28 October 2020 request. Rather, it was said to be a generic communication directed at individuals whose attempts to make an exceptional assurance request via the online form may have been affected by the technical difficulties, requiring them to submit a fresh request. On that basis, the respondent contended that the applicant’s assurance expired on 24 November 2020 and that her subsequent email of 5 February 2021 constituted a new request.

24. However, as Mr Jones submitted, it is not enough for the respondent simply to assert that the email of 24 November 2020 was a generic communication sent to individuals whose attempts to make an exceptional assurance request may have been affected by technical difficulties with the online form. If that were the case, the respondent could reasonably be expected to substantiate the claim, for example by producing a witness statement from an official familiar with the policy. But no such evidence has been provided.

25. On consideration, I do not accept the respondent’s interpretation of the email. The 24 November 2020 communication expressly stated, “Thank you for submitting your request for Exceptional Assurance”, and explained that technical difficulties might have prevented processing. It then sought the same information required by the online form. On its plain wording, the email was a request to resubmit details for the existing application, not an invitation to make a new one. I accept Mr Jones’ submission that if the email was intended to invite the applicant to make a new request, it should have stated this explicitly and specified both the timeframe for compliance and the consequences of failing to do so. Contrary to what Ms Howarth submitted, any ambiguity in the email should not be resolved in favour of the respondent as the uncertainty and technical issues were of her making and would otherwise operate to prejudice the applicant who had, in good faith, sought to comply with the Home Office’s requirements.

26. I therefore turn to consider the other scenario posited by the respondent: that the 24 November 2020 email was inviting the applicant to resubmit information included with her 28 October 2020 request, but the applicant’s failure to respond within a reasonable time meant that the 5 February 2021 email in effect became a fresh request for an exceptional assurance. As can be seen from the excerpt above, the 24 November email did not give the applicant a deadline for responding nor did it explain the consequences were she to fail to do so. The respondent now argues that two weeks would have been a reasonable period for the applicant to have responded: see paragraph 21 of her skeleton argument. I accept in principle that the applicant was expected to respond to the email of 24 November within a reasonable period of time. It is not a realistic proposition that the respondent should have to wait indefinitely for a response to her communication. But what I do not accept is that an arbitrary two week deadline can be imposed after the event. Mr Jones directed the Tribunal to the respondent’s Hong Kong British National (Overseas) route guidance (Version 10.0) (“the BN(O) guidance”) which says on page 24 that caseworkers “should consider whether an application was made within a reasonable period on a case-by-case basis depending on the individual circumstances.” While I accept that policy does not apply to exceptional assurances, the principle set out is a reasonable one with wider application. In circumstances where the respondent has not given a deadline for responding to a request for information, whether a reasonable period of time has elapsed will depend on the particular circumstances of the case. If the respondent intended to impose a cut-off date following which the applicant would be expected to make a fresh request for an exceptional assurance, then the respondent should reasonably have notified her of this.

27. A further difficulty for the respondent’s case is this: if a reasonable time had indeed elapsed and the applicant’s email of 5 February 2021 is to be treated as a fresh request, what became of the request made on 28 October 2020? No decision was ever taken to reject it as invalid or to refuse it, and no caseworker guidance has been disclosed to support the respondent’s assertion. In my judgment, it is unsustainable for the respondent to suggest that the earlier request simply ceased to exist without any formal disposal. The applicant was reasonably entitled to notice of its outcome. The absence of any indication as to what happened to the 28 October 2020 request undermines the respondent’s explanation.

28. I am therefore satisfied that the applicant’s email of 5 February 2021 was a resubmission of information previously provided in her 28 October 2020 request, as invited by the respondent’s email of 24 November 2020. It was not a fresh request. Accordingly, the decision of 16 February 2021 was in fact a refusal of the 28 October request, and the applicant’s period of exceptional assurance continued until that date.2

29. This means that when the applicant made her application for settlement, also on 5 February 2020, she was still a regularised overstayer and remained as such until 16 February 2021. By that point in time, the EA policy had been updated again. It included the following passage under the “If you intend to stay in the UK” heading, which appears to have added to it on 23 December 2020:

“You are also able to apply for leave to remain to regularise your stay if you have been issued with ‘exceptional assurance’. You must submit your application before the expiry of your ‘exceptional assurance’.

30. Underhill LJ considered the meaning of that passage in Seerangan at [22]:

“Para [14], however, is directed to persons without current leave to remain but with a current EA…Read literally, para [14] is simply a statement that persons without current leave to remain but with a current EA are “able to” make an application for leave to remain in the UK, without saying anything about the outcome. But since under the Rules any application by one of the usual routes would be bound to fail because they had no leave, the statement only makes sense if it means that a person with an EA will be treated as if they had leave to remain—that is, as if they were not overstayers. To put it another way, it means that their current overstaying is to be disregarded as long as the entire period since the expiry of their visa is covered by an EA granted under the Policy: the disregard would be outside the Rules, but the Secretary of State has power to waive compliance. That gives a beneﬁt over and above the purely protective eﬀect of section [A], but it is understandable that the Secretary of State would be prepared to extend such a beneﬁt to persons with an EA, who will by deﬁnition have established that they were genuinely unable to leave the UK on the expiry of their visa and who have acted responsibly by taking advantage of the process made available to regularise their position.” (Underling added)

31. Furthermore, the respondent’s Coronavirus Extension Concession (CEC) and the Exceptional Assurance Concession guidance (Version 1.0; 9 April 2024) says as follows:

“The policy intent was that during a period with exceptional assurance or short-term assurance the holder would not be regarded as an overstayer or suffer any detriment in future applications relating to that period. Those granted exceptional or short-term assurance were informed they could apply for permission to stay or leave the UK before the expiry of their assurance.

[…]

Paragraph 39E(5) of the Immigration Rules was amended so that overstaying during periods where the person held an exceptional assurance or short-term assurance will be disregarded and will not break continuous residence.”

32. Accordingly, when the settlement application was made on 5 February 2021, the applicant fell within paragraph 39E(3) and (5) as her periods of overstaying between 24 January and 31 August 2020, and between 1 September 2020 and 16 February 2021, were to be disregarded because, during those periods, she was covered by the two phases of the EA policy.

33. The applicant formally claimed asylum on 28 April 2021 while her settlement application remained pending. That claim had the effect of superseding the settlement application, although formal notification of this was not issued until 30 September 2021. The respondent has not argued that, by varying her settlement application to an asylum claim, the applicant ceased to benefit from the protections afforded by the EA policy. Accordingly, while the applicant’s visit visa was not extended under s.3C of the Immigration Act 1971, she was entitled to pursue her asylum claim through to appeal without suffering any detriment as a result of overstaying.

34. The applicant’s appeal continued to be “pending” for so long as “an application for permission to appeal under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination”: see section 104(1) and (2)(a) of the Nationality, Immigration and Asylum Act 2002. Her appeal was dismissed on 7 April 2024 and, under rule 33(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, she had 14 days to seek permission to appeal. She ultimately chose not to do so, and her appeal therefore ceased to be “pending” on 21 April 2024.

35. The applicant then made her BN(O) application on 2 May 2024, which was 11 days after she exhausted her appeal rights and 25 days after her appeal was dismissed.

36. Before I go on to consider the lawfulness of the respondent’s decision to refuse the applicant’s BN(O) application, I first summarise the following key findings that I have made:

a. The applicant entered the UK with a visit visa valid until 16 April 2020.
b. She was granted periods of exceptional assurance on 8 April, 1 June and 28 September 2020 until 31 October 2020. During these periods, she was a regularised overstayer.
c. On 28 October 2020, the applicant made an in-time request to extend the exceptional assurance. That request extended her existing assurance pending a decision by the respondent. The email of 5 February 2021 provided information to the respondent in support of the 28 October request.
d. The request was considered and rejected on 16 February 2021. At that point, the applicant ceased to be a regularised overstayer.
e. Meanwhile, the applicant had made an application for settlement on 5 February 2021. Under protections afforded by the EA policy, the periods of overstaying covered by the exceptional assurances would not be detrimental to that application.
f. On 28 April 2021, the applicant varied her settlement application to an asylum claim.
g. The applicant’s asylum claim was refused with a right of appeal. That appeal remained “pending” until the applicant had exhausted her appeal rights on 21 April 2024.
h. Within 14 days of the asylum appeal coming to an end, the applicant submitted her BN(O) application to the Home Office, on 2 May 2024.

The decision to refuse the BN(O) application

37. The applicant’s BN(O) application was refused on 10 September 2024. As Mr Jones observed, the summary of the applicant’s immigration history in that decision omitted any reference to her request for an extension of exceptional assurance made on 28 October 2020. Instead, it referred only to a request dated 5 February 2021. Home Office electronic file notes, obtained by the applicant through a subject access request, suggest that the respondent believed no request to extend exceptional assurance had been made prior to 31 October 2020. As discussed earlier, the respondent now accepts that the applicant did submit an online request on 28 October 2020. I am satisfied that the absence of a proper record of this request is likely due to the technical issues referred to in the respondent’s email of 24 November 2020.

38. The respondent therefore approached the factual history of the application on an erroneous basis. By concluding that the applicant did not have the protection of an exceptional assurance at the time she submitted her settlement application the respondent failed to apply the EA policy. Consequently, her period of overstaying from 31 October 2020 onwards was treated as adverse to her application. This is evident from the decision, which stated:

“The department has observed that your CV – Exceptional Extension (Covid 19) expired on 31 October 2020 and you submitted your Settlement Protection application on 5 February 2021 some 3 months 5 days [sic]. Therefore, you were resident in the UK during this period without any valid legal leave to remain.”

On that basis, the respondent refused the application under paragraphs HK 2.1 and HK 2.2, although, as discussed earlier, the correct provisions were HK 11.1 and HK 11.2.

39. I am therefore satisfied that the decision is materially flawed in fact and, furthermore, it does not adhere to the Coronavirus Extension Concession (CEC) and the Exceptional Assurance Concession guidance. Had the respondent been properly aware that the applicant requested an extension of exceptional assurance on 28 October 2020, and that this request remained undecided when she submitted her settlement application, there is a real prospect that she would have reached a different conclusion.

40. As paragraph HK 11.2 (then in force) required the decision-maker to disregard periods of overstaying covered by paragraph 39E, the respondent ought to have considered the following. First, she should have disregarded the applicant’s overstaying between 17 April and 31 August 2020 under paragraph 39E(3), as well as the period during which the applicant benefited from an exceptional assurance, from 1 September 2020 until 16 February 2021, when her 28 October 2020 request was refused, under paragraph 39E(5). Second, she should have recognised that the applicant’s settlement application, later varied by her asylum claim, was submitted prior to the expiry of that exceptional assurance. Third, the respondent should have considered whether the short delay in submitting the BN(O) application following the dismissal of the asylum appeal ought to have been disregarded under paragraph 39E(2), given that it was made within 14 days of the conclusion of the appeal.

The administrative review decision

41. The respondent’s failure to properly appreciate the facts of the case or apply her guidance then continued into her consideration of the applicant’s request for an administrative review. In her initial application for administrative review, prepared without legal assistance, the applicant expressly addressed her attempt to extend the exceptional assurance:

“Efforts to Regularize Stay and Technical Difficulties: I applied for another Exceptional Assurance before 31 October 2020, as acknowledged by the Home Office in the rejection letter dated 16 February 2021. I was actively engaging with the Home Office, trying to regularize my stay. The Home Office recognized in the email dated 4 November 2020 [sic] that there was technical difficulties, which were beyond my control.”

Unfortunately, in her first administrative review, dated 6 December 2024, the respondent misunderstood the point the applicant was trying to convey. She responded by saying:

“Furthermore, we acknowledge you contacted the Home Office when you were experiencing technical difficulties which caused delays whilst applying for your CV Assurance and that the Home Office acknowledged these technical difficulties, however this does not deter from the fact that your previous visitor visa had already expired and before it’s expiry, you did not submit a valid application to regularise your stay. The case worker also noted that paragraph 39E of the Immigration Rules (exceptions for overstayers) would not be applicable to your case as your Hong Kong BNO [sic] application was submitted out of time and not within 14 days of your previous visitor leave expiring.”(Underlining added)

As is clear from reading that passage, the respondent erroneously believed it was the applicant rather than the Home Office who had suffered technical difficulties with the online request. Furthermore, the decision focussed on the fact that the applicant had not made an application for leave prior to her visit visa expiring on 16 April 2020. No consideration was given as to whether the applicant had continuing exceptional assurance until 16 February 2021 and therefore benefited from the EA policy at the time her settlement application was made.

42. On 28 December 2024, the applicant sent to the Home Office a pre-action letter written by a direct access barrister. It contained the following passage:

“On 30 August 2020, the SSHD granted my client Exceptional Assurance until 31 October 2020. Prior to the expiry of Exceptional Assurance, my client applied for an extension of her Exceptional Assurance. On this occasion, she did not receive an immediate response. However, on 24 November 2020, she received an email apologising for "the delay in replying" and stating that the SSHD was "experiencing technical difficulties". This email confirms that an application had been made by my client. This is further confirmed by the fact that the Exceptional Assurance application was rejected on 16 February 2021 for the following reason:

"We have reviewed the circumstances of your case and by virtue of the fact that you have submitted an application to remain in the UK which is currently pending, you are already protected against immigration enforcement and would not benefit from an assurance."

43. Despite the pre-action letter more clearly explaining the circumstances surrounding the applicant’s pre-31 October 2020 request for an extension of exceptional assurance, the respondent’s second review, dated 13 February 2025, merely repeated the reasoning contained in the first administrative review. It again failed to engage with the applicant’s central argument regarding her continued coverage under an exceptional assurance. The second review maintained that the applicant’s leave expired on 16 April 2020 and that she had been an overstayer since that date; it acknowledged the BN(O) guidance permitting applications within one month of an asylum refusal but dismissed this as immaterial, relying on the earlier finding that the applicant had no valid leave after 16 April 2020. Crucially, it failed to address the effect of the 28 October 2020 exceptional assurance request and the EA policy, which provides that time awaiting a decision on such a request should be treated as covered by an assurance.

44. I am therefore satisfied that, by failing to recognise and address the errors in the decision of 10 September 2024, the administrative review is likewise vitiated by a public law error.

Ground 2: Failure to consider the Hong Kong BN(O) caseworker guidance

45. The applicant argues that, even if she could not benefit under paragraph 39E, she was entitled under the BN(O) guidance to a one-month period following the dismissal of her asylum appeal in which to submit her application. As I have found that the applicant was entitled to benefit under paragraph 39E, it is unnecessary to decide this ground. However, I will address it briefly.

46. The key passage of the BN(O) guidance on which the applicant relies is on page 24:

“Previous asylum claims

[…]

You should consider whether an application was made within a reasonable period on a case-by-cases basis depending on the individual circumstances.

However, generally an applicant will be expected to have made an application no more than one month after withdrawing their asylum claim.”

47. However, the applicant did not withdraw her asylum claim; it was dismissed on appeal. The second administrative review is ambiguous as to whether respondent accepted that the same principle applied to cases where an applicant is unsuccessful on appeal:

“You state that you submitted your BN(O) application on 02 May 2024, which was just 25 days after your asylum appeal was refused on 07 April 2024 and that according to Home Office BNO [sic] Guidance issued on 10 April 2024, applicants have up to one month to apply and submit an application following an asylum refusal. You submit that your application was submitted within this timeframe and therefore you complied with Immigration Rules while on immigration bail. We acknowledge the above claims, however this does not alter the fact that your previous leave had already expired on 16 April 2020 as outlined above.” (Underlining added)

It is unclear whether this wording indicates that respondent accepted the applicant’s interpretation or merely acknowledged the argument while deeming it irrelevant because her previous leave had expired. Before the Tribunal, the respondent’s position is that the guidance is self-explanatory and does not apply to a person in the applicant’s position.

48. While there appears to be no obvious reason why the BN(O) guidance should draw a distinction between cases where an applicant has withdrawn an asylum claim and those where an applicant has been refused asylum, there has been no direct challenge by the applicant to the guidance itself. That is perhaps unsurprising. A court or tribunal can only intervene in respect of government policy or guidance if it positively authorised or approved unlawful conduct by others: see R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931 at [38]; and R (BF (Eritrea) v Secretary of State for the Home Department [2021] 1 WLR 3967 at [49]. There is no rational basis to suggest that the BN(O) guidance does anything of the sort.

49. In the circumstances, I must apply the clear and unambiguous wording of the BN(O) guidance and I accept the respondent’s submission that it does not apply to individuals in the applicant’s position.

Ground 3: Legitimate expectation and abuse of process

50. This ground is also academic in the light of my findings in respect of Ground 1, and I can therefore deal with it briefly as well.

51. The applicant argues that in agreeing to withdraw her first administrative review but then substituting it with a substantively identical decision, the respondent breached the principles of legitimate expectation and procedural fairness. The applicant asserts that she was entitled to a genuine reconsideration, not least in circumstances where she had identified material errors in the original review. She relies upon the judgment Glushkov v Secretary of State for the Home Department [2008] EWHC 2290 (Admin) and the respondent’s policy Withdrawing decisions (Version 4.0).

52. In Glushkov, Collins J held at [18] that the respondent should only use her power to withdraw immigration decisions during a statutory appeal “if she is genuinely of the view that she might change her mind on reconsidering the material that is put before her” by the appellant. Collins J went on: “It would be a wrongful exercise, and unfair to the appellant, if she were simply to use this power because she wanted more time to deal with the material that was put forward but had no intention of changing her mind as a result of it.”

53. The Withdrawing decisions guidance, which refers to [18] of Glushkov on its fifth page, is for use by presenting officers. It says that a “decision should only be withdrawn with a view to granting leave. You do not have to be certain that leave will be granted, but you must genuinely view that it might.”

54. Both authorities concern withdrawals of immigration decisions by the respondent in the context of statutory appeals before the First-tier Tribunal; they do not address other forms of withdrawal, such as administrative reviews. In this case, there was no apparent tactical advantage of the kind identified by Collins J for the respondent in withdrawing her first administrative review. I accept Ms Howarth’s submission that the withdrawal occurred because the respondent genuinely intended to revisit her decision, though this did not necessarily imply that she would reverse it. Furthermore, I also accept that, having withdrawn the first review, the respondent was not precluded from relying on the same points if she remained reasonably satisfied that her conclusions had not changed.

55. The respondent also relies upon the decision of the Supreme Court in Re Finucane [2019] All ER 191 at [62] (per Lord Kerr):

“From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.”

56. When asked what clear and unambiguous undertaking the respondent had given to the applicant in agreeing to re-make the administrative review, Mr Jones accepted that this was a more difficult question to answer. He submitted that the promise was a “processing” legitimate expectation rather than a “substantive” one: namely, that the applicant could expect her representations to be properly considered in the new review. He argued that this did not occur. However, that falls far short of a “clear and unambiguous undertaking.” The applicant could expect only that her representations would be revisited; there was no promise as to the nature or outcome of the review, nor that the new decision would differ substantively from the original.

Conclusion

57. For the reasons set out above, the claim succeeds on Ground 1. Grounds 2 and 3 are dismissed.

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