The Home Office has published new guidance for Afghan citizens who are already in the UK on study and work routes. The document outlines concessions to the Immigration Rules for Afghans who entered the UK before 1 September 2021 or applied for a visa by that date and arrive later, and dependants of such people. The concessions apply to all decisions made from 14 January 2022 and will be reviewed in a year’s time.

The concessions are effectively two-fold:

1. a documentary evidence concession (overview on page 4, more detail on page 9)
2. a switching concession (summarised on pages 4-5, detail on pages 6-8)

There are general requirements that applicants need to meet to avail of these concessions. These relate to:

• having lawful status in the UK (or being granted an exceptional assurance or the benefit of the paragraph 39E grace period)
• date of entry being prior to 1 September 2021 (or arriving subsequently having made an entry clearance application prior to 1 September 2021)
• the type of visa the person holds and the type they wish to renew or switch into.

Applicants will still need to meet every other requirement of the rules they are applying under, except those addressed by these two concessions. This is not a general waiver of immigration requirements for Afghans in the UK.

On switching, the guidance says:

This concession recognises that the situation in Afghanistan may mean that some Afghan nationals may be in the UK and eligible for other immigration routes, but may face challenges if they are required to return to Afghanistan in order to make an out of country application for entry clearance as would normally be required. This concession is intended to facilitate those who have come for a visit or on a temporary route but who meet the requirements of the work and study routes to continue their stay in the UK, including on routes to settlement where those requirements are met, and where UKVI are satisfied that it would not be appropriate to require them to return to Afghanistan.

Applicants need to notify the Home Office that they wish to be considered under this concession and their reasons why. The switching concession applies to dependants who wish to switch in line with main applicants, and also to dependants who wish to switch in order to become a main applicant in their own right, if they meet all other requirements of the rules. Helpful tables on pages 6-8 set out the switching rules which can be disapplied under the concession in the different study and work routes.

The documentary evidence concession is what it says on the tin:

Due to the current situation in Afghanistan, an applicant may be unable to provide the full range of documents required under the route under which they are applying. If so, an applicant must explain why they cannot provide a normally required document when they make their application. They can do this by drafting a letter setting out their reasons and using the document upload function when completing their application.

Examples of a “sufficient and reasonable explanation” as to why an applicant is unable to provide particular documents include:

it is not possible to obtain a document from an institution as it is not functioning or is not offering its full range of services due to current circumstances…

the document can only be obtained in person, no one else in Afghanistan can reasonably be expected to obtain it on the applicant’s behalf and it is not reasonable to expect the applicant to travel to the location in Afghanistan it needs to be obtained from as it may be unsafe.

All in all, fairly useful, if long awaited.

The guidance is very similar to the concessions brought in for Syrian nationals in 2016 and what Colin wrote then also applies here:

What the guidance does not say is that almost any Syrian Afghan would be entitled to asylum if they wished to make a claim, and that if a successful claim was made then he or she would be entitled to family reunion with any spouse or children still in Syria Afghanistan.

For information on applying for asylum rather than permission to stay in a work or study route, see this article from Jamie Bell.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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