The recently decided case of AS (Ghana) v Secretary of State for the Home Department  EWCA Civ 133 (20 January 2016) in the court of appeal has confirmed that section 3C leave does not apply to EEA residence applications. Under the Immigration rules an Applicant can continue to remain in the UK whilst they wait for a decision on an application to extend their current visa. Section 3C and leave prevents the Applicant from becoming an overstayer and extends the Applicant’s UK immigration status during any waiting time for their application to be decided or for an appeal to be decided. The new case decided by the Court of Appeal confirms that when an EEA or non- EEA national makes an application for a residence document which is refused, the Applicant may not be entitled to continue to have a right to reside in the UK by virtue of section 3C. We have outlined the impact of the case and the decision below.
Court of Appeal Decision of AS (Ghana) v Secretary of State for the Home Department
The case involved a non EEA national granted residence permit as the non-EEA spouse of an EEA national valid between 17 November 2006 and 17 November 2011. The couple divorced on 25 October 2011.
The First Tier Tribunal and Upper Tribunal dismissed the Appellant’s appeal on the basis that there was no valid appeal because appeals under the Immigration Act 1971 are given to a category of immigration decision including the refusal to vary person’s leave to enter or remain. The Appellant’s lawful residence in the UK as a qualifying family member of an EEA citizen was determined not to amount to such leave.
The court of appeal in its determination stated the following;
The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.
The answer to that question lies in the rules as set out in the Immigration Act 1971 which was amended to create a right under section 3C for an Applicant to be able to remain in the UK after making a valid application to extend their visa and or when that application is refused.
To benefit, the Applicant must have an existing leave to enter or remain at the time when the valid application is made. Section 3C then prevents such an applicant from becoming an overstayer during the period in which their application for an extension or variation of leave remains undecided and, thereafter, while an Immigration appeal against any refusal could be brought or is pending. Section 3c has been further amended by the immigration Act 2014 to restrict the use of section 3c as a right to continue to remain in the UK.
The court of appeal’s conclusion in the case above therefore confirmed the Home Office’s updated policy on section 3c leave;
- Mr Kannangara’s submission that a person “should” have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court.
- As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act.
The Appellant’s leave as an EEA national therefore did not entitle him to a right under section 3C to extend his status and right to remain in the UK as previously awarded to him under the EEA regulations.
Home Office Policy on Section 3C Immigration Leave for EEA nationals
We previously reported that the Home Office updated its policy guidance which confirms that EEA applications do not qualify as applications that extend section 3C leave. The Home Office guidance also clarifies that when a Non EEA national makes an application to extend their current leave under the EEA Regulations, such an application will not treat their leave to remain in the UK as continuing. Therefore when the Applicant’s visa expires the Applicant will become an overstayer. Applicants who wish to make an EEA application to extend their current leave should seek legal assistance before making an application for an extension or variation of leave.
The Home Office current policy guidance can be read here.
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