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Does the protection of section 3C extend to out of time appeals?

Whether a migrant is protected under section 3C of the Immigration Act 1971 (“s.3C”) is often not too complicated to figure out. If they have made an in-time application and a decision is received after the expiry of their leave, then their leave is automatically extended by statute. Similarly, leave is extended throughout the appeal period if lodged in time. However, what if a migrant has section 3C but, for whatever reason, lodges an appeal out of time?

When might an appeal be submitted out of time?

Let us consider a situation that can (and does) happen to many. Tina makes an in-time application for (indefinite or limited) leave to remain and then her leave expires before she receives a decision  (so she is covered under section 3C). The refusal decision is then sent by second class recorded post (it happens) so she only received it after the 14 day deadline to appeal has passed. Through no fault of her own, Tina is forced to lodge the appeal to the First-tier Tribunal out of time and ask for an extension of time. In these circumstances, is Tina protected under section 3C for the ensuing period until the appeal is concluded? This is important for those concerned about their right to work, the security of assets in their current bank account, and right to continue to drive etc.

Does the protection of section 3C extend to out of time appeals?

The short answer is that the Home Office would argue that Tina is not protected under section 3C. However, interpretation of section 3C is not for the Home Office but for the Courts, and it is arguable that those who lodge an appeal out of time may still be covered by section 3C.

So far as relevant, section 3C states the following:

3C Continuation of leave pending variation decision

(1)  This section applies if-

(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(a) the application for variation is neither decided nor withdrawn,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, is pending (within the meaning of section 104 of that Act); or

(d) ….”

Section 104 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) (as amended) states the following:

“104 Pending appeal

(1) An appeal under section 82(1) is pending during the period—

(a) beginning when it is instituted, and

(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

(2) ….”

Home Office guidance “Leave extended by section 3C (and leave extended by section 3D in transitional cases) Version 8.0” (“the Guidance”) states the following:

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.”

There does not appear to be any direct authority on whether those who lodge an out of time appeal are covered by section 3C. In CHH (Notices Regulations – right of appeal – leave to remain) Jamaica [2011] UKUT 121 the court stated at §16 that if “a person makes a late appeal after the period when an appeal could be brought, and he is given permission to appeal out of time, his leave is not reinstated. Section 3C(2)(c) [sic] of the 1971 Act provides for leave to be extended while an appeal is pending. But if the leave has lapsed, it cannot be extended.” Whilst CHH concerned a case relating to those given a restricted right of appeal, the Courts may follow CHH and find that an out of time appeal does not extend section 3C as a result. One interpretation of s.3C(2)(b), which states that “leave is extended … when …. an appeal could be brought … (ignoring any possibility of an appeal out of time with permission)”, is that the phrase in the parenthesis supports this argument. 

Can the protection of section 3C ever extend to out of time appeals?

That being said, it remains arguable that those who lodge an out of time appeal are still protected by section 3C, if and once the FTT grants an extension of time.

First, §16 of CHH is obiter as the Tribunal was not strictly considering the status of section 3C when an appeal is lodged out of time. CHH does not appear to have been followed, or referred to, in any subsequent cases. Further, §16 of CHH may have been wrongly decided because leave does not lapse if an extension of time is granted. As a matter of terminology, the FTT extends time to lodge an appeal. It does not, for instance, agree to process an out of time appeal (similar to Home Office’s 14 days grace period under paragraph 39E of the Rules). In other words, once the FTT extends time, the appeal ought to be considered as lodged in-time. Therefore, it is arguable that section 3C need not be ‘reinstated’ and there is no issue of extending lapsed leave (§16 of CHH) as it actually never lapsed.

Second, once time is extended, Tina would be under section 3C(2)(c) because the appeal is ‘pending’ under s.104. Given that Tina’s appeal was ‘instituted’ and not yet finally determined, it would not be in dispute that her appeal is ‘pending’. In this respect, it is worth noting that section 3C(2) is disjunctive rather than conjunctive, and so as a matter of statutory construction there is no need for Tina to satisfy all the subsections under section 3C(2).

Third, the wording under s.3C(2)(b) of “ignoring any possibility of an appeal out of time with permission”, does not appear in s.3C(2)(c).  On one view, the phrase in s.3C(2)(b) is there to prevent a person from arguing that they are protected by s.3C when no appeal is brought, simply on the basis that an appeal ‘could be brought’ sometime in the future. The absence of such a phrase in s.3C(2)(c) supports the argument that once time to lodge an appeal is extended, and an appeal is pending, one falls to be protected under s.3C(2)(c). 

It was found at §8 of Saimon (Cart Review: “pending”) [2017] UKUT 00371 that an appeal that initially appeared to have been finally determined can again be pending under s.104 of the 2002 Act. In a similar vein, it is arguable that even if s.3C once appeared to come to an end because the appeal was lodged out of time, s.3C leave is extended under s.3C(2)(c) once the appeal is ‘pending’ within the meaning of s.104 of the 2002 Act.

Therefore, it appears to be at least arguable that, notwithstanding the lodging of an out of time appeal, Tina’s immigration status in the UK will be protected if (and once) the FTT grants an extension of time.

Notwithstanding the above, practically speaking, it is important to bear in mind that for all intents and purposes, the Home Office’s position is that those who lodge an out of time appeal are unlawfully in the UK. Furthermore, there may be limited opportunity for a migrant to litigate this point and the migrant is likely to be treated as an overstayer until final determination of the appeal.

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