The recent Court of Appeal case of Palla v Secretary of State for the Home Department  EWCA Civ 264 (“Palla”) heard on 20 February 2019 confirms the position and definition of the extension of leave under Section 3C of the Immigration Act 1971 (“Section 3C Leave”). For further advice and guidance on Section 3C Leave, please contact our specialist immigration team to arrange a consultation.
What is Section 3C Leave?
Section 3C of the Immigration Act 1971 (“the 1971 Act”) provides that a person’s leave to remain in the UK may be extended if an application to vary that leave has been made or an appeal has been lodged before the expiry of the original leave. Now amended and contained in section 11 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), Section 3C Leave protects migrants from technically becoming overstayers whilst they have an application or appeal pending; assuming it was lodged in time. A person covered by Section 3C leave can continue to enjoy their rights in the UK as they would under their last grant of lawful leave until a decision on their application or appeal is made. An Applicant will be deemed to have lawful immigration status if they have an Immigration application pending with the Home Office and the following apply:
- The Applicant had lawful immigration status when the application was submitted;
- The Applicant applies for a variation or extension of that leave;
- The Applicant’s application for variation or extension of leave expires without a decision being made.
Section 3C Leave Case Study: Palla Background
The Appellant was an Indian national who first entered the UK on 11 February 2008 on a student visa valid until 20 September 2009. The Appellant then successfully applied for Leave to Remain in the UK as a post-study migrant on 21 March 2009 granting him leave until 9 April 2011. On 5 April 2011, the Appellant applied for further Leave to Remain as a Tier 1 (General) student which was granted until 7 August 2014. On 24 November 2012, the academic institution where the Appellant was studying had its sponsor licence revoked and consequently, the Appellant’s Leave to Remain was curtailed on 8 February 2013, with effect from 12 April 2013.
Section 3C Leave Case Study: Palla Facts
The Appellant applied for further Leave to Remain as a Tier 4 (General) student on 11 April 2013; however this application was deemed invalid on 22 May 2013 as the appropriate fee was not paid. On 3 June 2013, the Appellant made a further application for Leave to Remain as a Tier 4 (General) student but this was refused on 26 June 2013. On 8 July 2013, the Appellant lodged an appeal and the Secretary of State for the Home Department (“SSHD”) withdrew her decision on 23 September 2013 on the basis that the Appellant had not been given 60 days to find a new educational establishment to take him. Then, on 14 January 2014, the SSHD wrote to the Appellant informing him that the academic institution he applied to study at had its sponsor licence revoked and therefore the Appellant’s Certificate of Sponsorship (“CAS”) was no longer valid and that his application would be refused on that basis.
On 17 March 2014, the Appellant provided the SSHD with a new CAS but the following week the SSHD was informed by the organisation providing approved English language testing that the Appellant’s test result had been cancelled owing to evidence of invalidity so on 8 December 2014, the Appellant’s June 2013 application for Leave to Remain was refused.
The Appellant travelled to the Republic of Ireland on 6 June 2016 and when he tried to return to the UK he was found guilty of illegal entry contrary to s.24(1) of the 1971 Act but was conditionally discharged and served with further notice of liability to removal. The Appellant challenged this notice on Article 8 grounds which were rejected on 8 July 2016. On 14 July 2016, these judicial review proceedings were issued and permission to apply for review after consideration on papers was refused by the Upper Tribunal on 6 July 2017.
Section 3C Leave Case Study: Palla Judgement
The Appellant raised a new argument that his Leave to Remain had been extended by Section 3C and that it had not lapsed on his departure to the Republic of Ireland on 6 June 2016. He argued that the Tribunal had been wrong to find that the Leave to Remain had expired in April/May 2013 and that there had been no subsequent Leave to Remain granted. However, the Judge held that the Appellant’s Leave to Remain expired on 12 April 2013 when his application was returned as invalid. Thereafter, there was no Leave to Remain capable of being extended by 3C Leave from that point. Furthermore, even if hypothetically the Appellant had been covered by 3C Leave at that point until travelling to the Republic of Ireland, his leave would have been broken as he left the UK. The appeal was therefore dismissed.
The full judgement can be accessed here: Palla v Secretary of State for the Home Department  EWCA Civ 264 | LEXVISA Solicitors and Barristers
What does the Palla case mean for other Section 3C Leave cases?
Whilst the outcome of the Palla case was negative, it confirms the position and definition of Section 3C Leave. Anyone who has an extension of Leave to remain by virtue of Section 3C of the 1971 Act but leave the UK, including to the Common Travel Area, will then cease to be covered by Section 3C Leave. Section 3C Leave is a complex and often misunderstood area of UK immigration law and therefore Applicants should seek legal advice from immigration experts such as our immigration team, in order to book a consultation so our immigration solicitors can assess each case in detail and advice on 3C Leave and the best course of action for each individual.
Using Legal Representation to get advice on Section 3C Leave
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with an application. Our solicitors and Barristers will help you comply with the Home Office’s requirements and meet the Immigration Rules.
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The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully submit an application for further leave to remain in the UK
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