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Section 3C leave does not always protect during appeals

The Home Office has issued a new updated version of its policy on section 3C and 3D leave: Leave extended by section 3C (and leave extended by section 3D in transitional cases). Section 3C and 3D leave is an automatic type of leave created by an amendment to the Immigration Act 1971 so that where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status would be extended during any waiting time for the application to be decided or for an appeal to be decided.

Except that is not quite true any more. Section 3C was amended by the Immigration Act 2014 and no longer protects those who make an application and appeal it where the decision was made by the Home Office before the person’s leave expired. Where the decision is made after the person’s leave expired, section 3C continue to work its magic.

The first subsections of section 3C now read:

3C Continuation of leave pending variation decision

(1) This section applies if—

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom,] 4 is pending (within the meaning of section 104 of that Act), or
(d) an administrative review of the decision on the application for variation—

(i) could be sought, or
(ii) is pending…

How does this work in practice? Let us consider a hypothetical example.

Example

Theresa is the spouse of a British citizen in the UK. She was granted two and a half years of leave as a spouse when she first entered and she now needs to apply for an extension. She makes her application in good time, 28 days before her leave is due to expire. Her application is refused a week later. A civil servant makes a mistake and the refusal is incorrect. She appeals.

When Theresa’s leave expires, it expires. The fact that she is pursuing an appeal does not help her. She becomes an overstayer. Overstaying is a criminal offence. It is also considered “bad character” if she wants to apply for British citizenship later. Her employer has to sack her and her landlord has to evict her. In short, she loses her good character, her job and her home.

She wins her appeal a year and a half later (appeal waiting times are extraordinary at the moment) but this cannot undo the damage.

Had Theresa waited to make her extension application until the day before her leave was due to expire,  any refusal would have come after the expiry of her leave. In those circumstances, her appeal and section 3C would protect her.

I confess that this is something I had not myself appreciated and I am grateful to ILPA for flagging it up (join here). It is very important in practice.

You might think this is crazy, but the current Immigration Bill will entirely remove all in-country appeals for a person like Theresa. Any person refused an extension by the Home Office will have to leave the UK in order to pursue an appeal.

Returning to the new section 3C policy, page 12 confirms when addressing section 3C leave being extended while an appeal is pending that:

If a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave.

The headline changes to the policy noted by the Home Office itself are:

  • the guidance clarifies that EEA applications do not qualify as applications that extend section 3C leave
  • the guidance also clarifies that section 3C leave does not apply where the Tribunal allows an appeal out of time or the Home Office withdraws a decision where section 3C leave is not in operation at the time the decision is withdrawn

The policy also specifically refers to the Court of Appeal case of  Iqbal & Others [2015] EWCA Civ 838 in which it was held that section 3C leave does not apply where the application to extend or vary leave is rejected as invalid.

Source: 3C and 3D leave – Publications – GOV.UK

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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