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Home Office can’t accidentally grant section 3C leave by deciding an invalid application

Home Office can’t accidentally grant section 3C leave by deciding an invalid application

R (Basir) v Secretary of State for the Home Department [2018] EWCA Civ 2612 is about section 3C of the Immigration Act 1971. Section 3C works as follows: 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 is extended during any waiting time for the application to be decided or for an appeal to be decided. (Although see Colin’s post highlighting an important exception to the general rule when the application is decided before the original visa expires.)

If you are on section 3C leave, you can’t use that breathing space to make a new application for leave. It is only really intended to keep your stay in the UK legal while the extension application is being considered/appealed — not to try your luck with a different application entirely while that is going on.

Mr Basir, however, made a further application for leave to remain as a Tier 1 (Entrepreneur) migrant while section 3C was operating (he had a rejected application that he could have appealed). The Home Office, instead of essentially ignoring it as being invalidly made, decided this second application on its merits and refused it. Mr Bashir then made a third application, which was rejected because he was by then an overstayer. His appeal against that third decision was that, hang on, the Home Office did take up my second application and its refusal should have triggered section 3C again. If that was the case, the third application was in time after all.

Or, as the Court of Appeal puts it:

The issue on this appeal is whether an application for leave to remain which the applicant is not permitted to make by reason of section 3C(4) of the 1971 Act operates to extend the applicant’s leave under section 3C(2) of that Act because the Respondent refuses that application on its merits (which refusal is not challenged) rather than rejecting it as invalid.

The answer was that it does not. The Home Office running with an invalid application did not create a loophole in the section 3C system:

From the outset the application was invalid, being made in contravention of section 3C(4) of the 1971 Act.

The application of section 3C(4) represents the law, it is not dependent upon any decision taken by the SSHD. There is no discretion or power expressed within section 3C(4) which confers upon the SSHD a power to waive the prohibition it lays down. Section 3C(4) is clear in its terms. It would be contrary to the language and purpose of section 3C(4) to hold that an application made contrary to it nonetheless operates to extend leave under section 3C(2).

Nice try, I suppose.

 

Conor James McKinney

CJ is Free Movement's deputy editor.

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