Human rights claims, the Same-Day Premium Service and the Section 3C trap
This is a word of caution for those who are considering the use of the Home Office’s Same-Day Premium Service when making an extension or settlement application.
When making a human rights claim to either extend leave to remain or to settle in the UK, there is an option to use the Home Office’s Same-Day Premium Service for an additional fee. Many applicants prefer to use this service as applications are often decided on the same day – avoiding any prolonged separation with valuable documents such as passports. Even when a decision is not taken on the same day, decisions are usually taken much quicker than postal applications – avoiding what can often be a distressing period of up to 6 months (and regrettably in some cases even longer). There is therefore little doubt that the Premium Service is generally recommended for most people.
However, the biggest drawback with using the premium service is one that is often overlooked by individuals and some practitioners: the section 3C trap.
Under section 3C of the Immigration Act 1971 (’s.3C’), an applicant’s leave to remain is automatically extended when certain conditions are satisfied. This is an incredibly important piece of statute which secures the rights of those who make an application in time but do not receive a decision before the expiry of their leave. In summary, the following circumstances will attract the protection of s.3C leave:
- A person with limited leave to enter or remain applies for further leave (either limited or indefinite) to remain in the UK;
- The application is made before the expiry of their current leave to remain; and
- The decision on that application is taken after the expiry of their current leave to remain.
Those who use the Premium Service often fall at stage 3, where their extension or settlement application is refused before the expiry of their leave. In these circumstances, s.3C will not bite even if an appeal against the decision is lodged in a timely manner, and the person’s leave will expire when their leave comes to an end.
To date, we have had a number of clients who have sought our legal advice after their extension or settlement application was refused using the Premium Service. Their appointment was a week or two before the expiry of their leave and the application was refused either on the day of the appointment or prior to the end of their leave. They may think that by lodging an appeal against the decision their immigration status in the UK is secured but, for reasons explained above, this belief is mistaken. In some circumstances, individuals may be forced to make a second postal application, before the expiry of their leave, just so that they are not in the UK unlawfully during the lengthy appeal period.
Being an overstayer in the UK is the last thing most people want to be, and rightly so. Being in the UK without a lawful status can lead to the revocation of driving licences, the loss of right to work, and being unable to rent a property or open a bank account. It can also damage one’s prospects of an appeal. For example, in order to qualify for indefinite leave to remain in the UK, one requirement is that the applicant is not in the UK in breach of immigration laws. It is ideal for anyone appealing against the decision of the Home Office to be able to show that they satisfy the requirements of the Immigration Rules at the date of the hearing. Being an overstayer may therefore harm the prospects of an appeal if in the UK without lawful status at the date of the hearing.
Applicants are advised therefore to think and plan carefully before opting to use the Same-Day Premium Service. If not confident that the application will be approved, for example, it may be prudent to make the application via the Premium Service a week or two in advance, rather than on the last day of leave.
Contact Our Immigration Barristers In London
For expert assistance with preparing an application for an extension of stay or settlement via the Home Office’s Same-Day Premium Service, contact our immigration barristers on 0203 617 9173 or via our enquiry form.
