Successful Challenge to Hong Kong BN(O) Refusal on Overstayer Grounds: Home Office Erred in Exceptional Assurance Timeline

The applicant, Shuk Wai Tsang, a Chinese national from Hong Kong born in 1991, first entered the UK on 15 September 2015 as a Tier 5 Youth Mobility migrant, departing on 16 November 2018. She returned on 16 October 2019 with a six-month visitor visa expiring on 16 April 2020. Due to the COVID-19 pandemic and travel restrictions, she sought extensions under the Home Office's Coronavirus Extension Concession (CEC) and Exceptional Assurance (EA) policy. She was granted successive assurances: from 8 April 2020 (until 31 May 2020), 1 June 2020 (until 31 July 2020), and 28 September 2020 (until 31 October 2020, backdated to 1 August 2020).

On 28 October 2020, prior to the expiry of her last assurance, she submitted an online request for a further extension. Due to technical issues with the Home Office's form, she received an email on 24 November 2020 inviting resubmission of details. She responded on 5 February 2021, also submitting a settlement application that day. The assurance request was refused on 16 February 2021, citing the pending settlement application. On 28 April 2021, she varied her settlement application to an asylum claim, which was refused on 31 October 2023. Her appeal to the First-tier Tribunal was dismissed on 7 April 2024, and she did not seek further permission to appeal, exhausting her rights on 21 April 2024.

On 2 May 2024 (11 days after exhausting appeal rights), she applied for permission to stay under the Hong Kong British National (Overseas) (BN(O)) route as an unmarried partner of a BN(O) status holder. This was refused on 10 September 2024 on suitability grounds under paragraphs HK 11.1 and HK 11.2 of Appendix Hong Kong BN(O) (equivalent to HK 2.1 and HK 2.2), citing breach of immigration laws due to overstaying since 31 October 2020, without valid leave. The refusal did not account for her 28 October 2020 EA extension request. An administrative review was requested on 20 September 2024 and upheld on 6 December 2024. Following pre-action correspondence, the Home Office reconsidered but maintained the refusal on 13 February 2025, again failing to address the EA policy properly.

The judicial review application was filed on 12 May 2025, with permission granted on 27 June 2025 by Upper Tribunal Judge Kamara. The hearing occurred on 27 November 2025 before Upper Tribunal Judge Hoffman.

Issues

The applicant raised three grounds for judicial review:

  • Ground 1: The Home Secretary failed to correctly apply paragraph 39E of the Immigration Rules (exceptions for overstayers) in conjunction with the EA policy guidance, which should have disregarded her periods of overstaying due to ongoing EA coverage until 16 February 2021 and subsequent protections during her asylum claim.
  • Ground 2: The Home Secretary failed to apply the BN(O) guidance, which allows a reasonable period (generally up to one month) after an asylum refusal to submit a BN(O) application without adverse consequences for overstaying.
  • Ground 3: The Home Secretary's withdrawal and remaking of the administrative review decision breached legitimate expectations and constituted an abuse of process, as it was not a genuine reconsideration but a substantively identical refusal.

The core issue was whether the refusal on suitability grounds (breach of immigration laws via overstaying) was lawful, given the applicant's immigration history, the EA policy's role in disregarding COVID-related overstaying, and procedural fairness in the administrative review.

Relevant statutes

·       Paragraph 39E of the Immigration Rules

·       Paragraphs HK 11.1 and HK 11.2 of Appendix Hong Kong British National (Overseas)

·       Exceptional Assurance (EA) policy / Coronavirus Extension Concession (CEC) and Exceptional Assurance Concession

·       Guidance on the Hong Kong British National (Overseas) route

 

Decision

The judicial review was granted on Ground 1, quashing the Home Secretary's decisions of 10 September 2024 and 13 February 2025. Grounds 2 and 3 were dismissed as academic or unfounded. The case highlights the importance of accurate application of the EA policy to avoid unfair refusals based on technical or pandemic-related overstaying. The decision was promulgated on 7 January 2026 and published on 12 January 2026.

Analysis of the Decision

Judge Hoffman found the Home Secretary's refusal materially flawed due to factual errors and misapplication of policy. On Ground 1, the judge determined that the applicant's 28 October 2020 EA extension request remained pending until refused on 16 February 2021, extending her coverage under the EA policy. The 24 November 2020 email was an invitation to resubmit details for the existing request, not a new one, and ambiguities should resolve in the applicant's favor as the issues were Home Office-created. Thus, her overstaying from 1 September 2020 to 16 February 2021 was disregarded under paragraph 39E(5). Her settlement application (varied to asylum) was made while covered by EA, protecting her from detriment under the policy (as per Seerangan v SSHD [2025] 4 WLR 60). Post-asylum, her BN(O) application was submitted within 14 days of exhausting appeal rights, qualifying for disregard under paragraph 39E(2). The administrative reviews perpetuated these errors by misunderstanding the EA timeline and technical issues, rendering them unlawful.

Ground 2 was dismissed because the BN(O) guidance explicitly applies to withdrawn asylum claims, not dismissed appeals like the applicant's. While no rational basis for this distinction was evident, the guidance was unambiguous and not challenged as unlawful. Ground 3 failed as the withdrawal of the first administrative review was for genuine reconsideration, not tactical advantage (distinguishing Glushkov v SSHD [2008] EWHC 2290). No clear undertaking for a different outcome existed, and the Home Secretary could maintain her position if reasonably unchanged (per Re Finucane [2019] All ER 191).

Overall, the ruling emphasizes fair application of pandemic concessions, criticizing the Home Office's record-keeping and policy adherence. It sets a precedent for disregarding overstaying in similar COVID-affected cases, potentially aiding other applicants with EA histories.

Citation

The decision is cited as R (on the application of Tsang) v Secretary of State for the Home Department JR-2025-LON-001504 (UTIAC). As an unreported Upper Tribunal decision, it may later receive a neutral citation like [2026] UKUT 000XX (IAC) if selected for reporting.

Link to the Decision: https://tribunalsdecisions.service.gov.uk/utiac/jr-2025-lon-001504

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