If an application for further leave to remain is made before the expiry of a person’s current leave, they are permitted to remain while the application, and any subsequent appeal, is determined. In such situations, the person’s leave is extended by section 3C of the Immigration Act 1971. However, what happens to 3C leave if the application or appeal is refused?
28 days old rule grace period
Under the old rules in force before 24th November 2016, if an overstayer re-applied for leave to remain within 28 days of the expiry of their previous period of leave, that period of overstaying was disregarded by the Home Office.
New rule of 14 days grace period
Leave extended under section 3C ends as soon as an appeal/application is finally determined i.e. when the decision is issued and the deadline for any onward appeal has passed. The 14-day grace period is vital in such circumstances as without it any further application made to the Home Office from within the UK would be refused on the basis that the person is in the UK in breach of immigration laws. Given the prevalence of such situations, abolishing the grace period completely would be unworkable.
This has been introduced by paragraph 39E of the Immigration Rules which allows an application to be accepted:
- within 14 days of leave expiring where there was a good reason beyond the control of the applicant or their representative why the application could not be made in-time;
- within 14 days of the date of a decision to refuse an application which was either made in-time or within 14 days;
- within 14 days of 3C leave expiring;
- within 14 days of the deadline for lodging an administrative review application or appeal against a refusal decision, following an application made in time or within 14 days; or
- within 14 days of any administrative review or appeal being concluded, withdrawn or abandoned or lapsing, following an application made in time or within 14 days.
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