The Home Office recently published a new updated version of its policy on section 3C and 3D leave. 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 3D 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 update published by the Home Office highlights the recent changes to the immigration rules and the Home Office’s updated policy when considering whether an Applicant continues to have a right to reside in the UK by virtue of section 3C. We have outlined key changes to UK immigration rules and Home Office policy on section 3C for you below.
The Immigration Rules
The Immigration Act 1971 was amended to create a right under section 3C and 3D for an Applicant 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.
Following the amendments to the section made by the immigration Act 2014, Applicants should now be aware that the rules have been changed to state that section 3C will not apply when an applicant makes an application and the decision to refuse his application was made by the Home Office before the Applicant’s leave is due to expire.
Section 3C subsection 1 states the following:
3C Continuation of leave pending variation decision
(1) 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.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom,] 4 is pending (within the meaning of section 104 of that Act), or
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending…
The consequences of this change for Applicants are very significant. The change means that where an Applicant makes an application to extend their leave in the UK whilst still having valid leave to remain in the UK, if such in application is refused before the the applicant’s legal right to remain in the UK will expire once the Applicant’s visa expires.
Home Office Updated Policy
The Home Office updated policy guidance states that the following key changes have been made its previous policy;
- The guidance clarifies that EEA applications do not qualify as applications that extend section 3C leave.
- the guidance also clarifies that section 3C leave does not apply where the Tribunal allows an appeal out of time or the Home Office withdraws a decision where section 3C leave is not in operation at the time the decision is withdrawn.
Applicants from outside the European Economic Area (Non EEA) nationals should note that when they make 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 Applicants 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 full policy guidance can be read here.
Successful UK Visa Applications and Appeals
The changes to the Immigration Rules are the perfect example of the importance of legal advice when making a visa application or applying for an extension of your current UK visa.
Our team of experienced and professionally qualified immigration solicitors and barristers will be able to guide you through the process of making a visa application to the UK step by step and limit the possibility of failure by complying with the strict letter of law. If you have had a visa application refused and you have been given the right to appeal, contact our expert immigration team for legal advice. Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through your appeal process step by step.
Our Immigration Experts are able to give specialist legal information and advice in this area of law. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02071830570 for a telephone case assessment.