Extension of leave pending appeal – avoiding the Section 3C trap

Section 3C of the Immigration Act 1971 (“section 3C”) automatically extends an applicant’s existing leave to remain in the UK (“leave to remain”) in certain circumstances until a decision has been made on their application for further leave to remain and, if necessary, during the ensuing appeal. This can be a very helpful provision; however changes introduced by the Immigration Act 2014 provide a trap for unsuccessful applicants who may inadvertently become unlawful overstayers while waiting for their appeals to be determined. This can be avoided with some simple planning – albeit at a cost.

Section 3C applies if a person who has leave submits an application to the Secretary of State for variation of that leave, the application is made before the existing leave expires, and the leave expires without the application having been decided.

If section 3C applies, the leave is automatically extended:

• during any period when the application is neither decided nor withdrawn (i.e. while the applicant is still waiting for a decision to be made on the application);
• during any period when an appeal against the decision on the application could be brought while the applicant is in the UK (i.e. while the applicant decides whether or not to appeal against an adverse decision, but only if they can appeal from within the UK. For applicants who are only able to appeal after they have left the UK, the extension of leave ends when a decision has been made);
• during any period when an appeal against the decision on the application which has been brought while the applicant is in the UK is pending (i.e. while the applicant is waiting for the final determination of the appeal, e.g. from the First-tier Tribunal, Upper Tribunal, or Court of Appeal).

If section 3C does not apply, leave is not extended.

Section 3C does not apply where the applicant’s existing leave has already expired before the application is submitted. Applicants in this position will (hopefully) already be aware that their leave has expired and that section 3C will not assist them. However, section 3C also does not apply where an in-time application is made and a decision is made on the application before the existing leave expires. Applicants in this position may fall into the trap of thinking that section 3C helps them. It does not.

Under the old appeals regime there was no real possibility for confusion as where section 3C did not apply in relation to an application there would be no right of appeal in relation to an adverse decision on that application. Thus, if a decision was made to refuse an application and at the time the decision was made the applicant continued to have leave then, whatever application had been made, there was no right of appeal. By contrast if at the time the decision was made the effect of the decision meant that the applicant no longer had leave to remain in the UK then, whatever application had been made, there was a right of appeal. This was inevitably the case where section 3C applied.

Under the new appeals regime there is no longer any necessary connection between the application of section 3C and the existence of a right of appeal. This is because the right of appeal is now generated by reference to the type of application that was made, not the type of decision that has been made. If an applicant makes a human rights claim in their application then if that application is refused it will generate a right of appeal – whether or not the applicant had leave to remain in the UK when the application was made and whether or not the applicant continues to have leave to remain in the UK when the decision is made. It is therefore perfectly possible for an applicant to have a right of appeal without at the same time having the protection of section 3C.

Home Office policy indicates that many applications are considered to be human rights applications and that the starting point is therefore that refusal would generate a right of appeal. These include applications for indefinite leave to remain in the UK under paragraph 276B of the Immigration Rules (ten years continuous lawful residence in the UK), applications for further leave to remain in the UK under paragraphs 276ADE(1) and 276DE (private life in the UK), and most applications under Appendix FM (although curiously not those based on bereavement or domestic violence). If such an application is refused then (subject to provisions which will be discussed in a separate article) the applicant will have a right of appeal which, unless certified as clearly unfounded, will be exercisable from within the UK.

It may be perfectly reasonable for an applicant to submit an application with a human rights claim substantially before their current leave expires. In addition, the Home Office are generally deciding new applications more quickly than in previous years. As a result, it is increasingly possible for applicants to have a right of appeal – against refusal of their human rights claim – but to continue to have leave to remain in the UK. In these circumstances their leave will not be extended by section 3C as the original leave continues.

Crucially, in these circumstances section 3C will not apply when their leave does expire – even if their appeal is still pending. This is because the criteria necessary for section 3C to apply do not exist. Although the first two criteria apply (the applicant has leave to remain and submits an application to vary that leave before that leave expires) the third criterion does not apply as a decision has already been made on the application when the leave expires.

The Tribunal is currently unable to cope with its appeal workload. Appellants can expect to have to wait around a year for their appeal to be heard. Appellants whose leave has not already been extended may therefore wish to consider submitting a fresh application, itself also including a human rights claim, shortly before their leave expires in order to remain lawfully in the UK while their appeal is pending.

It is worth noting that applications not listed in the policy above as human rights applications may nevertheless include a human rights claim and thereby generate a right of appeal in the event of refusal. Whether that would be appropriate or helpful approach in any given case would require careful consideration. Also it is at least theoretically possible for an application of a type that is on the list not to include a human rights claim, and therefore not to generate a right of appeal in the event of refusal.

For reasons set out in this post, notwithstanding the above, section 3C may however apply in a case where the date on the Home Office decision letter precedes the date of expiry of existing leave. In the limited circumstances described it would not be necessary to submit a fresh application.

Immigration Barristers in London – Section 3C Advice

For expert advice regarding your immigration appeal rights and leave to remain in the UK, contact Richmond Chambers Immigration Barristers on 0203 617 9173 or via our online enquiry form.