Section 3C and the Notices Regulations
Section 3C of the Immigration Act 1971 provides for an automatic extension of leave while an in-time application is being decided, including while it is being appealed.
Importantly, for section 3C to be engaged, the application has to be made before the previous leave expires and the previous leave must expire before a decision is made on the application.
It is therefore very important to know when a decision is made.
The Home Office's own Modernised Guidance, valid from February 2015, on section 3C and 3D leave states that for the purposes of section 3C an application is 'decided' when a notice of decision is served in accordance with the Immigration (Notices) Regulations 2003 or where no such notice is required.
This Guidance then goes on to summarise the contents of the Immigration (Notices) Regulations 2003 as follows:
Where an application has been refused, a notice is required under the Immigration (Notices) Regulations 2003. Where the notice is sent by post in line with regulation 7(1) (c) of those regulations, it is presumed to have been served, unless otherwise proved:
- on the second day after it was posted if it is sent to a place within the UK
- on the 28th day after it was posted if it is sent to a place outside the UK.
For more information, see related link Immigration (Notices) Regulations 2003 – regulation 7(4).
The link provided is to Regulations as they were before the amendments introduced by the Immigration (Notices) (Amendment) Regulations 2014.
Previously the Regulations made provisions for deemed service of a decision, as summarised in the Guidance. However, the 2014 amendment removed the provision for deemed service within the UK. The Regulations now say:
“(4) Where a notice is sent by post to a place outside the United Kingdom in accordance with paragraph (1)(c) it shall be deemed to have been received on the twenty-eighth day after it was posted, unless the contrary is proved.”
The Regulation is now silent as to when notices sent within the UK are deemed to be served.
It is clear that The Home Office Guidance is incorrect (and has been from the date it was valid). What is less clear, is when an application will now be considered to be ‘decided’ for the purposes of section 3C.
The Regulations continue to require service of a decision. Section 4(1) of the Immigration Act 1971 states that:
"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument."
Therefore, the power to make a decision to vary leave to remain which is made in respect of an individual, rather than a class of people can be exercised only by giving notice in writing.
If the power to make a decision can only be exercised by giving notice of the decision, it is arguable that an application is only ‘decided’ when notice is given. If this is correct then the application must be considered to be ‘decided’ only when notice of the decision is actually received by the applicant in the absence of a provision for deemed service.
However, in the absence of updated, correct Guidance, or judicial authority on the point, there is a risk that the Home Office will take a contrary view. If the Home Office considered that an application was ‘decided’ on the date recorded on the reasons for refusal as the ‘date of decision’ and that date is before an applicant’s previous leave expired, the applicant may not be able to rely on having had section 3C leave in the course of any following administrative review or appeal.
This ambiguity may affect, for example, those who need to prove continuous lawful residence, or to demonstrate that they have not overstayed (or not overstayed for more than 28 days) in order to make further applications. The Regulations were amended with effect from 06 November 2014, and will not have any retroactive effect.
For advice and assistance on any aspect of section 3C and the Notices Regulations, contact our direct access immigration barristers in London on 0203 617 9173 or via our online enquiry form.