Section 3C leave derives from section 3C of the Immigration Act [1971]. The purpose of section 3C leave is to prevent a person, who makes an in-time application to extend of vary their leave, from becoming overstayers whilst they await a decision on that application or any related appeal or administrative review.
Section 3C leave and pending applications:
A person will have section 3C leave if whilst they have valid leave to enter to stay in the UK, an application to extend or vary that leave is made in the UK. Such an application must have been made before the existing leave expires.
In such circumstances, an applicant will have section 3C leave whilst the application is pending i.e. has not been decided or withdrawn.
Section 3C leave and pending appeals:
Following on from the above, an applicant’s section 3C leave will continue if the application has been refused with an in-country right of appeal. The appeal must be lodged in-time and if it is, section 3C leave will continue whilst the appeal is pending i.e. a decision is outstanding on the appeal.
Each refusal letter will specify the relevant time for lodging an appeal. This is usually 14 calendar days or 10 working days from the date of the decision.
Section 3C leave will continue until the appeal is finally determined. This is where the appeal determination/decision has not been challenged further, where it is possible to do so. Alternatively, until the time frame for raising such an onward challenging through application for permissions to appeal to the Upper Tribunal or Court of Appeal (and not the Supreme Court), has come to an end.
If an applicant does not already have section 3C leave, the fact that they are given an in-country right of appeal against a decision does not in itself give the applicant section 3C leave.
Section 3C leave and Administrative Review:
Equally, an applicant’s section 3C leave will continue if an in-time application has been refused with a right to administrative review. An administrative review application must be sought within the time limit specified on the refusal letter and if it is, section 3C leave will continue whilst the administrative review is pending, and no new application for leave to remain has been made.
Acts that will end Section 3C leave:
An applicant will no longer have 3C leave if:
- An applicant leaves the UK.
- An applicant withdraws an in-time application after the current leave has expired.
- An application is made after an applicant’s current leave has expired.
- An invalid application is made. The Home Office usually provides a 10 working day period to rectify the issue causing the invalidation. If this is correctly done and the application is accepted as valid, section 3C leave will continue from the date of application and not from the date the error is rectified.
- There has been a failure to provide biometrics. In this case, section 3C leave comes to an end when the Home Office serves a notice of invalidity.
- A refusal decision that has an out-of-country right of appeal/ the application has been certified, unless withdrawn.
Section 3C leave and withdrawn decisions:
There are instances where the Home Office may make a decision that bring an applicant’s section 3C leave to an end e.g. where the application is certified. Where such a decision is later withdrawn, the applicant’s section 3C leave will resurrect from the point the decision is withdrawn.
Withdrawing a decision will have no effect on an applicant’s section 3C if the applicant did not have section 3C leave at the time the decision was withdrawn.
EEA applications/residence card before 31st December 2020
Those who were granted a residence card before 31st December 2020, should be aware that Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations. This is because by making an application for a residence card, the applicant seeks confirmation of the rights he/she is able to enjoy under the EEA Regulations and does not require leave to enter or remain in the UK.
EU Settlement Scheme post 31st December 2020
Any individual who has entered the UK before 31st December 2020 or is a close family member of an EEA national who has entered the UK by this date, and has since obtained pre-settled status, will be protected by section 3C leave when they make an application for settled status. This application must be made before the expiry of the pre-settled status, which is usually 5 years.
Those with settled status do not require the protection of Section 3C leave. The settled status grants the recipient the right to remain in the UK indefinitely. Unless cancelled, it also protects the recipients until they become British citizens.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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