CA-2024-002479 - [2025] EWCA Civ 1464

The appellant is a national of Bangladesh. He was born on 1 December 1978. On 3 September 2020 he entered the UK with his wife, Hazera Hossain, and their son, Mursalin Hossein, on a 2-year multiple visit visa.

Because of the Covid-19 pandemic the family were unable to return to Bangladesh as planned. In February 2021 all of the family tested positive for Covid-19. On 30 June 2021 the appellant applied to the Home Office for an “exceptional assurance” under its “Coronavirus concessions” introduced in response to the pandemic. On 23 July 2021 the Home Office granted him that exceptional assurance allowing him to remain in the UK until 1 October 2021. The letter stated that “during this time you will not be regarded as an overstayer or suffer any detriment in any future applications”.

In the meantime the appellant’s wife had made an application on 7 May 2021 for leave to remain in the UK as an “Overseas Business Representative” (“OBR”) with their son as her dependant. On 16 August 2021 the appellant’s wife and son were granted limited leave to remain under the OBR rules until 16 August 2024.

On 31 August 2021, before the end of the exceptional assurance period, the appellant applied to the Home Office for leave to remain as the spouse of a person granted leave to remain under the OBR rules.

On 29 March 2022 the Home Office refused the appellant’s application and maintained that decision on 12 April 2022. The reason given was as follows:

“Guidance for switching in-country to the Dependant Route of Overseas Business Representative:

Migrants can switch, change immigration category, in-country provided they were not last granted:

•

entry clearance or leave as a visitor, short-term student or short-term student (child)

•

temporary admission

•

temporary release

In view of the fact that you have applied for Leave to Remain as the Dependant of a Overseas Business Representative Migrant, but your last leave to Enter the United Kingdom was granted as a Visitor, you are therefore unable to switch to the dependant route.”

On 22 April 2022 the appellant applied for an administrative review of that decision on the basis that the application had been made “in country” because of the Covid-19 restrictions and in line with the exceptional assurance. That application resulted in the Home Office deciding on 24 May 2022 to withdraw the decision of 12 April 2022 because officials had made an error:

“I have carefully considered the points that you raised in your administrative review. I have withdrawn the original decision because I have found that the original decision maker made an error when considering your application.

The error was that your application was not considered using the correct rules. Therefore, I have sent your application for reconsideration to correct the error and make a new decision on your application.” (emphasis added)

However, when the Home Office redetermined the appellant’s application on 3 January 2023 they decided once again that it was invalid, essentially for the same reasons as had been given in the decision dated 12 April 2022 and which, according to the letter dated 24 May 2022, had involved applying the wrong rules:

“You have attempted to make an application as a dependant of a representative of a overseas business, however, your application is invalid.

You were last granted permission to enter the UK as a Visitor, and you are now applying to extend your permission to stay in the UK as a dependant of a representative of a overseas business.

Paragraph ROB 20.4. of Appendix Representative of an Overseas Business states:

ROB 20.4. A person applying for permission to stay must be in the UK on the date of application and must not have, or have last been granted, permission:

(a)

as a Visitor; or

(b)

as a Short-term student; or

(c)

as a Parent of a Child Student; or

(d)

as a Seasonal worker; or

(e)

as a Domestic worker in a private household: or

(f)

outside the Immigration Rules.

As such, you do not meet the validity requirements as set out in Appendix Representative of an Overseas Business and therefore your application has been rejected.”

The letter of 3 January 2023 made no attempt to address the letter from the Home Office dated 24 May 2022, in particular to explain why the Home Office had been incorrect in stating that the original decision had been based on the wrong rules. The appellant was back to square one.

The appellant’s immigration advisers sent a pre-action protocol letter to the Home Office on 9 February 2023. The Home Office replied on 6 March 2023 stating that although the Coronavirus concessions in place on 7 May 2021 when the appellant’s wife made her application under the OBR rules would have allowed the appellant to switch to that route from the visitor route, that particular concession had ceased by the time he made his OBR application as a dependant on 31 August 2021.

However, according to the appellant’s skeleton before the UT, it was not until just before the hearing on 9 October 2024 that the respondent made the relevant policy statements available. The appellant submitted to the Tribunal that there was no relevant difference between the policies applicable on 7 May and 31 August 2021. This issue between the parties about the correct interpretation of these two editions of the policy was the point of law which the UT decided is arguable.