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Briefing: what is section 3C leave?
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If a migrant makes a valid application to extend their leave (permission) to be in the UK before it expires, their existing leave will be rolled over until a decision has been made on the application, even if this is after the original expiry date. This is commonly known as “section 3C leave”, because it is in section 3C of the Immigration Act 1971.
Section 3C leave is one of the most important concepts in our immigration system. It protects a migrant’s right to work and rent while they await a decision on an extension or switching application and ensures continuity of legal residence between grants of permission.
This post explains what section 3C leave is and how it works. Note that we use the terms “permission” and “leave” interchangeably.
The relevant provision can be found – unsurprisingly – in section 3C of the Immigration Act 1971. Section 3C(1) says:
This section applies if—
(a) 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.
So section 3C leave is triggered where someone with permission to enter or stay makes a (valid) immigration application before their permission expires and they reach the date their permission was due to expire without a decision being made.
This latter point can often go overlooked. If a decision is made before the expiry of permission, section 3C leave is not triggered, even where the application is refused and the applicant lodges an appeal by the relevant deadline.
Section 3C(2) provides that, once triggered, 3C leave lasts for as long as one of the following applies:
- No decision is made on the application (and it is not withdrawn)
- The applicant has received a decision on the application but is still within the time limit for lodging an appeal
- The applicant has lodged an appeal against the decision and the appeal is pending
- The applicant has lodged an administrative review application within the time limit and it has not been decided, or they are still within the time limit for lodging one
Section 3C(3) states that 3C leave will lapse if the applicant leaves the UK. Contrast this with paragraph 34K of the Immigration Rules, which states that a pending application is treated as withdrawn when the person leaves the Common Travel Area. This means that someone who travels to Ireland, the Isle of Man or Channel Islands might lose their section 3C leave while their application nevertheless remains pending.
Section 3C and applications
Where a valid application is made before the expiry of permission, section 3C leave will be triggered from the point that permission would have expired, provided that no decision had been made yet. Asylum claims also trigger section 3C leave, but not further submissions.
Section 3C leave retains the character of the permission that it is extending. In other words, if someone has permission as a Tier 1 (Entrepreneur), and they spend a year on section 3C leave while waiting for a decision on their extension application (which unfortunately has been known to happen), they can count that year towards the five years needed to qualify for settlement.
It is impossible to overstate how important it is that the relevant application is valid. By this I mean that it complies with the generic validity rules in paragraph 34 of the Rules, or the category-specific validity requirements of the particular route where relevant. There are a number of ways in which validity issues can affect section 3C leave, which is reflected in Home Office guidance on validity and on section 3C leave.
Effect on section 3C leave
Invalid application that cannot be validated
Application for permission to stay in the UK Ancestry route by someone who has permission on a different route
Section 3C is never triggered and the applicant will be an overstayer from the date their permission was due to expire (if no further application is lodged before then)
Invalid application later made valid
Someone makes an otherwise-valid application but fails to provide a signed declaration where required; the Home Office contacts them to request the missing document and it is provided by the deadline given, thus validating the application
The application is deemed to have been valid from the start so section 3C leave is triggered as usual
Valid application later invalidated
The application is valid but the applicant fails to enrol their biometrics by the deadline provided and an invalidity notice is served
Section 3C leave is triggered as usual and continues until the application is invalidated by the notice of invalidity; the invalidation is not retrospective so section 3C leave only ends from the point that the notice is served
Because an otherwise-valid application can only be invalidated for failure to enrol biometrics by the deadline given, and this does not have retroactive effect, an application can be validly varied without enrolling biometrics, as long as this is done before the deadline. The applicant must, however, enrol their biometrics by the new deadline given when the variation application is lodged, unless they vary it again before that deadline.
Section 3C and appeals
Where an in-time application is refused after the applicant’s permission was due to expire, and there is a right of appeal, and the applicant lodges the appeal within the 14-day deadline, their permission will be automatically extended until the appeal has concluded.
In those circumstances, there would still be a gap in leave between the date that the 14-day deadline for lodging the appeal lapsed and the date that the appeal was lodged. Home Office guidance suggests that discretion will normally be exercised to overlook this gap – at least in long residence applications.
Section 3C leave can extend to cover the entire lifespan of the appeal, up to and including the Court of Appeal, but no further. Even if the applicant then appeals to the Supreme Court, section 3C leave will end with the Court of Appeal’s decision.
Section 3C and variations
Somewhat confusingly, the 1971 Act uses the term “variation” to mean both an extension application, and the procedure by which a pending extension application is changed to another type of application. Which is how we ended up with this bit of section 3C:
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
What this means is that if someone has an outstanding application that was made before the expiry of their permission and they transition to section 3C leave, they can vary their application to another type up to the point that the Home Office makes a decision. Once a decision has been made, though, any attempt to vary their application (i.e. lodge a new application) while they still have section 3C leave will be void.
Paragraph 34GB of the Immigration Rules say that where an in-time application is validly varied, the date of application (for the purpose of section 3C leave) is deemed to be the date of the original application. This means that someone can vary their outstanding application to another one at any time prior to the decision being made and still retain the benefit of section 3C leave.
Although the language of paragraph 34GB might seem to suggest that only one variation is possible, there is nothing stopping someone from varying their application more than once. In each case, the date of application for the purpose of section 3C leave will be the date the original application was made.
With variations, it is important to bear in mind that although the date of application when it comes to section 3C leave is the date of the original application, the date that is used as a reference point for whether the substantive requirements are met is actually the date the application was varied. Although this makes no difference in the above example, because the rules merely require her to have completed ten years’ residence before the date of the decision, other categories frame their requirements in reference to the date of application.
For instance, if Orianna had instead tried to switch into the partner route and relied on her employment income to show that she meets the financial requirement for that route, she would have needed to provide six months of financial evidence ending no earlier than 28 days before the date of application. In that case, the relevant date of application would have been 5 May 2022. This is confirmed in the Home Office variation guidance:
Where a variation application is made in accordance with paragraph 34E, the date the variation application is made is the date to be used for the purposes of assessment against the rules.
The advantage of the two reference points when it comes to dates of application is that a variation allows an applicant to maintain their section 3C leave at the same time as altering the date of application. This means that an applicant can lodge a holding application to ensure they do not become an overstayer, and then vary it to the application they want to make once the requirements of that category can be met.
Decisions withdrawn by the Home Office
It had long been the position of the Home Office that withdrawing a decision to refuse leave did not resurrect section 3C leave. Recent case law has forced the department to revise its position. As the official guidance now says:
Where a decision is withdrawn by the Secretary of State and the person has section 3C leave because of a pending appeal or administrative review, their section 3C leave will continue but will revert to leave under section 3C(2)(a) instead of section 3C(2)(b) as a decision on the original application will be outstanding.
Where a decision has been taken which has brought 3C leave to an end, and that decision is subsequently withdrawn the 3C leave will resurrect from the point the decision is withdrawn.
In effect, where the decision is withdrawn while the applicant still has section 3C leave, that leave will revert to its pre-decision form. This means that it becomes once again possible to validly vary that application to another type until the new decision is made. This might be helpful where it is likely that the new decision will be another refusal, just on a different basis, or where the applicant now qualifies for something better, such as settlement on the basis of ten years’ long residence.
The guidance also makes clear that where there has been a break in leave between the decision that ended section 3C leave and section 3C leave reviving following the withdrawal of the decision, discretion will be used to disregard the gap:
… where a decision is withdrawn and there is an application for leave outstanding, or a new application is made after a decision has been withdrawn, the person should not be disadvantaged by the break in their leave in having that application considered. This means you should treat the person as having been lawfully in the UK for the purposes of deciding the immigration application.
The Court of Appeal in Akinola distinguished between withdrawn decisions and cases where the Home Office merely agrees to reconsider the original decision:
A reconsideration is an internal review of the original decision. The reconsiderations guidance sets out the circumstances in which a formal request for reconsideration can be made and how it is to be dealt with, but reconsiderations can also take place for other reasons such as in response to a pre-action protocol letter or an actual claim for judicial review… In any event, if there is a withdrawal of the original decision, I have dealt above with the effect of that withdrawal on section 3C leave; but if there is no withdrawal of the original decision, I am satisfied that the making of a new decision on a reconsideration does not change the status of the original decision or its effect on section 3C leave.
The position is different where the decision that brought section 3C leave to an end is quashed by the Upper Tribunal or a court following judicial review. In those circumstances, the impugned decision will be a nullity and treated as if it had never been made. The applicant’s position with respect to section 3C leave will revert to whatever it was prior to the decision being made.
Applications withdrawn by the migrant
Where an applicant withdraws a valid, in-time application prior to the decision being made or a pending appeal, their section 3C leave comes to an end from the date of the withdrawal.
This is also the case where someone leaves the country, in line with section 3C(3), and it makes no difference if they are yet to enrol their biometrics, provided they have not missed the deadline.
Void applications are ones that cannot be decided. Examples include applications for permission to stay by British citizens, or an application by someone who has subsequently died. Section 3C(4) also renders void any applications made while someone has leave under this section after a decision has been made.
A void application is much like an invalid application in that it does not trigger section 3C leave, assuming it was void from the start. In some cases, a valid application that does trigger section 3C leave can subsequently become void, such as an extension application from someone who registers as a British national before a decision is made. Although there is no guidance on this point, I would expect an applicant to have the benefit of section 3C leave up to the point that the application becomes void.
Cancelling section 3C leave
In some circumstances, the Home Office can cancel an applicant’s section 3C leave:
(3A) Leave extended by virtue of this section may be cancelled if the applicant—
(a) has failed to comply with a condition attached to the leave, or
(b) has used or uses deception in seeking leave to remain (whether successfully or not).
The guidance confirms:
Cancellation of section 3C leave under this provision operates to bring the period of leave to an end with immediate effect. It cannot therefore be used to vary leave to, for example, 60 days.
In practice, it is rare for the Home Office to cancel section 3C leave. I personally have never had a case where section 3C leave was cancelled — but give me a shout if my experience is not representative.