The purpose of the section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending.
An in-time application is an application made by a person in the UK who at the time of application has leave to enter or remain. Where an in-time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires section 3C leave extends the person’s existing leave until the application is decided (or withdrawn).
When section 3C applies
This section 3C explains when a person’s leave is extended by section 3C of the Immigration Act 1971.
3C leave while an application pending a decision
A person will have section 3C leave if:
- they have limited leave to enter or remain in the UK
- they apply to the Secretary of State for variation of that leave
- the application for variation is made before the leave expires
- the leave expires without the application for variation having been decided
- the application for variation is neither decided nor withdrawn
3C leave while an appeal is pending
Section 3C leave continues during any period when:
- an in-country appeal could be brought (ignoring any possibility of an appeal out of time with permission)
- the appeal is pending (within the meaning of section 104 of the Nationality, Asylum and Immigration Act 2002), ie it has been lodged and has not been finally determined. Pending
Administrative Review
Section 3C leave continues during any period when:
- an administrative review could be sought
- the administrative review is pending ie it has not be determined
- no new application for leave to remain has been made
Section 3C leave extended when an in-time application is made
An in-time application is an application made by a person in the UK who at the time of application has leave to enter or remain. Where an in-time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires section 3C extends the person’s existing leave until the application is decided (or withdrawn). Section 3C does not extend leave, where the application is made after the applicant’s current leave, has expired.
EEA applications
Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations Immigration (European Economic Area) Regulations 2006 . An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.
Invalid applications
An invalid application does not extend leave under section 3C
Validated applications
Where an application is received that is invalid and a fee has been paid, even if it is the wrong fee, the specified application forms and procedures guidance provides that the Home Office will write out and provide a single opportunity to correct any omission or error. The person is given 10 business days to respond to the request. Where the requested information is received, and the application is accepted as valid then the application should be treated as valid from the date it was first made, not the date the further information was received. Where the application becomes invalid because of a failure to provide biometrics the Supreme Court clarified that section 3C leave came to an end at the point the Home Office serves a notice of invalidity.
Withdrawn applications
The specified application forms and procedures guidance sets out how to treat requests to withdraw applications and when the withdrawal takes effect. Where an application is withdrawn section 3C leave will come to an end.
Withdrawn decisions
Where a decision is withdrawn by the Secretary of State and the person has section 3C leave because of a pending appeal or administrative review, their section 3C leave will continue but will revert to leave under section 3C (2)(a) instead of section 3C(2)(b) as a decision on the original application will be outstanding. Where the decision is withdrawn after section 3C leave has come to an end withdrawal of the decision does not mean that the person once again has section 3C leave. Where on reconsideration of the withdrawn decision leave is then granted, the break in the person’s leave between section 3C leave coming to an end and the grant of new leave should not be held against them in any subsequent application.
Variation applications
This section explains how a variation application is to be treated while leave is extended by section 3C of the Immigration Act 1971 (“section 3C leave”). A variation application can seek to vary the:
- length of time for which the person is permitted to remain in the UK
- the condition attached to the leave
- the purposes for which the person is permitted to remain in the UK While the person’s leave is extended by section 3C they cannot make a new application for variation of leave.
3C leave extended while an appeal is pending
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. A person does not have section 3C leave during an appeal where the appeal can only be brought after the person has left the UK. In these cases, section 3C leave will come to an end when their application is decided and certified. If the certificate is withdrawn the underlying decision should also be withdrawn. A new decision should be made which will generate a new right of appeal, which may be subject to recertification. Withdrawal of the decision does not mean that the person once again has section 3C leave. This is because section 3C leave can arise and exist only where it is a seamless continuation of leave, either extant leave or section 3C leave. Where there is a break in that leave, such that section 3C leave has come to an end, section 3C leave cannot be resurrected.
When is an appeal pending?
3C leave will be extended until the appeal is no longer pending. An appeal is pending until either:
- it is finally determined
- it is withdrawn
- it is abandoned
Out of time appeals
Section 3C leave ends when the person does not appeal or seek permission to appeal within the relevant time limit even if the relevant Tribunal accepts the appeal or the application for permission to appeal out of time. Once section 3C leave has come to an end it cannot be resurrected. This is because section 3C leave exists only where it is a seamless continuation of leave, either extant leave or section 3C leave. Where there is a break in that leave for example, because section 3C leave has come to an end, section 3C leave cannot be resurrected.
Appeal finally determined
An appeal is finally determined when the appeal has been heard and decided and permission to onward appeal has not been sought within the prescribed time limits, or permission to appeal has been finally refused (namely there is no possibility of renewing the application for permission to appeal to a different court or tribunal). Where there is an onward right of appeal to the Upper Tribunal or Court of Appeal section 3C leave will automatically run until the time limits for onward appeal have expired. An appeal to the Court of Appeal is finally determined where judgement has been given by the Court of Appeal. An appeal to the Supreme Court does not extend section 3C leave. The effective date on which a decision on appeal or permission to appeal is finally determined is the date on which the appellant receives notice of the determination from the Tribunal.
3C leave while an administrative review is pending
Where a person has section 3C leave following an in-time application to vary leave and there is a right to administrative review of the refusal of that application, section 3C leave continues for the period during which an administrative review is pending. An administrative review is pending until either:
- it is withdrawn
- it is determined
- a fresh application is made which brings the section 3C leave to an end
Out of time application for administrative review
Where the person makes an out of time application for administrative review and the Home Office accepts the administrative review out of time the person will not have section 3C leave during the administrative review.
The decision was withdrawn during an administrative review
Where the Home Office withdraws a decision as a result of the administrative review section 3C leave reverts to leave under section 3C(5). This is because section 3C leave is no longer being extended as a consequence of an appeal being pending and reverts to leave which is being extended whilst a decision is awaited. As the decision has been withdrawn it is possible for the outstanding application to be varied during the period before it is decided
Fresh application while an Administrative Review is pending
When an administrative review is pending against refusal of an application, if a person submits a fresh application the administrative review will no longer be pending. If a protection or human rights claim is made while an Administrative Review is pending the claim will have the effect of bringing the Administrative Review to an end. Where an administrative review is no longer pending, section 3C leave comes to an end. Accordingly, where a fresh application is made after an administrative review has been refused it can be accepted because section 3C leave will have come to an end. Where the application is invalid the administrative review and the section 3C leave will not come to an end until such time as the application is accepted as being valid: see the invalid applications section for more information.
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