When does section 3C leave end?
Section 3C of the Immigration Act 1971 is an important provision for any migrant in the UK. This section allows a person who has submitted an in-time application to extend their stay in the UK (i.e. if they submit their application before their leave expires) not to become an overstayer while their application remains outstanding. This means that if an individual submits an application when they have leave to remain, and the Home Office do not make a decision on that application until after their leave would have expired, their leave is automatically extended with the same conditions. This means that people do not become temporary overstayers while their applications are outstanding and they do not lose their right to work (if they previously had one). Periods of time spent with leave extended by s3C also count towards continuous long residence for the purpose of settlement.
However, depending on what happens after the application is submitted, it can be complicated to work out the date on which someone’s leave actually ends. This has been further complicated by changes brought in by the Immigration Act 2014. This can be important for someone who has been unsuccessful in their application and they want to submit a fresh application within 28 days of becoming an overstayer or someone who wants to leave the UK within 90 days of becoming an overstayer to avoid a ban from the UK.
This post will look at some of the most common ways section 3C leave will end, making the individual concerned an overstayer. It will also set out some common circumstances where section 3C leave will not apply at all.
Following a Refusal Decision
If someone has their leave extended by section 3C and their application is refused, in most circumstances they will have either 14 days to either submit an Administrative Review or lodge an appeal with the Tribunal depending on what type of application was submitted and whether they have made a human rights claim as part of the application.
The 14 days starts from the date that the refusal decision was sent to the individual, rather than the date that it was received. Leave will continue to be extended throughout this period, unless the individual waives it in order to submit a fresh application. In order to do this, you can email the Home Office and ask for the request to be withdrawn.
In the event that no Administrative Review or Appeal is lodged then leave will expire on the last day that an Administrative Review or Appeal could have been brought.
Following an Administrative Review
An in-time request for Administrative Review will extend your section 3C leave, providing it had already been triggered by the application that was made.
The Administrative Review will remain pending, and therefore leave extended until:
- It is rejected as invalid;
- It is withdrawn;
- The outcome is served on the individual.
In relation to the third of these circumstances, the Immigration Rules at Appendix AR 2.9(c)(iii) states that an Administrative Review is pending until it is served in accordance with Articles 8ZA to 8ZC of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) (as amended). This provision states that the notice is deemed to have been served, if posted, two business days after the date on which it is sent. The Statement of Changes to the Immigration Rules, HC297 will amend the immigration rules in November 2015 to bring this provision into the Immigration Rules, as well as being in the Statutory Instrument.
Therefore to calculate the date on which your leave expires you need to look at the date the unsuccessful Administrative Review has been sent and add two business days (this doesn’t include weekends or bank holidays). This would be the date that your leave expires and the date from which you would then calculate, for example, the 28 days available to make a fresh application.
The only exception to this is where the individual is eligible to make a second Administrative Review request because the response to their first request has been refused for additional or different reasons. Leave will be extended for the period in which it is possible to make the second request and continue to be extended in the event that a further request is made.
Following an Appeal
Where leave has been extended by s.3C during an appeal, it will be extended until the appeal has been finally determined, withdrawn or abandoned.
An appeal is finally determined when all appeal rights are exhausted. Leave is extended during any periods when a further appeal could be brought. This means that the date s.3C leave ends could be:
- 14 days after the date on which a decision from the First-tier Tribunal has been sent to the individual;
- 14 days after the date on which the First-tier Tribunal refuses permission to appeal to the Upper Tribunal;
- 2 business days after the Upper Tribunal refuses permission to appeal to the Upper Tribunal;
- 12 business days after Upper Tribunal sends a decision dismissing an individual’s appeal.
There are further extensions of s3C leave that would apply if an individual were to apply to the Court of Appeal for permission to appeal. These are outside the scope of this article.
If at any stage in proceedings the decision is sent back to the Home Office for a new decision to be made on an application, leave will continue to be extended until that new decision is made. If the new decision is not favourable to the individual then leave may continue to be extended if an appeal or administrative review is pursued.
Circumstances in which leave will not be extended by Section 3C
- If an application is made at a time when a person has no leave, then section 3C cannot extend leave that was not there.
- If an individual applies for permission for Judicial Review, s3C does not apply. This is the case for both Judicial Reviews of refusal decisions as well as Cart Judicial Reviews. This equally applies to pre-action protocol letters and requests for reconsideration. These actions will not cause leave to be extended.
- If your leave expires while an Appeal or Administrative Review is outstanding. Because the provisions of the Immigration Act 2014 are now in force, a refusal decision can now come with a right of Appeal or Administrative Review, even when someone has leave outstanding. This means that they can have valid leave, while they pursue an appeal to the Tribunal. Section 3C won’t apply because the refusal decision will not have caused them to have no leave to remain in the UK. Given that the appeals process can take in excess of six months, there are likely to be many occasions where an individual’s leave will expire while they are awaiting their hearing date.
The fact of having an appeal outstanding will not cause section 3C to be triggered at the point at which the leave expires. Therefore, individuals may unwittingly become overstayers while awaiting an appeal, or alternatively will have to submit another application prior to their leave expiring in order to trigger the extension of their leave under s3C.
It is important for migrants to understand their status in the UK at all times. If you have any concerns about your status or want to know how an application, appeal or administrative review will affect your status then contact one of our specialist immigration barristers on 0203 617 9173 or complete our online enquiry form.