A new ruling concerning section 3C leave, as substituted by section 118 of the Nationality, Immigration Act 2002, from the Supreme Court was given today. The case of Mirza v Secretary of State for the Home Department (SSHD)  UKSC 63 was heard on 19 October 2016 and judgement was given on 14 December 2016. The judgement provided further clarifications on the operation of section 3C leave. The operation of relevant rules and laws had not changed; however, the justices at the Supreme Court did comment on the complexity of the current rules and that the case was somewhat troubling because of that.
What is Section 3C Leave?
Section 3C of the Immigration Act 1971 provides that a person’s leave to remain in the United Kingdom (UK) may be extended if an application to vary that leave has been made before the expiry of the original leave.
This provision was further amended and then substituted by section 118 of the Nationality, Immigration Act 2002 (as amended by section 11 of the Immigration, Asylum and Nationality Act 2006). The provision states that section 3C leave can only be relied on if the application of the variation of leave has not yet been decided after the original leave expires.
Essentially, it means that you may not rely on section 3C leave to extend your leave if your application was refused before your leave expires.
Furthermore, in order to rely on section 3C leave, you must have made a ‘valid application’. The validity of an application will include making the correct payments with a prescribed mode of payment.
Mirza v SSHD (2016): The Facts in relation to Section 3C Leave
This case involves three slightly different scenarios. Mr Iqbal and Mr Mirza’s cases involved a payment complication in relation to their in-time application. The issues of paying a wrong fee and a non-payment of application fess came to light when their application was rejected as invalid, after their leave has expired.
Both Appellants attempted to make a fresh applications after the initial rejection, thinking that they could rely on section 3C leave to extend their original leave.
However, it has be ruled that an application not accompanied by the specified application fees will not be considered as a valid application. This is in line with the usual interpretation of Regulation 37 of the Immigration and Nationality (Fees) Regulations 2011. Therefore, they were unsuccessful in their appeal.
As for Ms Ehsan, the third Appellant, her situation concerned a failure to provide biometric information after an application accompanied by the correct payment of fees has been made. Her application was rejected as invalid because she was told that she failed to provide biometrics. She also, similar to the other two Appellants, attempted to make a fresh application relying on section 3C but she was unfortunately unsuccessful.
Ms Ehsan’s situation was distinguished from the other two Appellants’ situation in that her application was invalidated at a later stage and retrospectively, when she was asked to provide biometrics after she had submitted a valid application. The judgement stated that there should not be a retrospective effect being read into section 5 and 7 of the UK Borders Act 2007 with regards to valid applications and biometric information provision. The law simply states that the SSHD may “treat” an application as invalid from the time of the decision but not before if biometrics were not provided. Unfortunately, this reading was not in favour of Ms Ehsan’s situation either. Therefore, she was also unsuccessful in her appeal.
Mirza v SSHD (2016): Impact on Section 3C Leave?
The Supreme Court’s ruling had not changed the interpretation of the relevant laws. Hence, the operation of section 3C leave remains the same.
What was interesting was that the judges sitting commented on how complex the Immigration Rules and laws have been developing and how they can often work against the favour of common men who are subjected to immigration control. Lord Carnwath had found the case “troubling” and “particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of the meaning of the relevant rules and regulations”. This has had a detrimental effect on the general public, particularly on those who are directly affected. It was also mentioned that there is an “overwhelming need for rationalisation and simplification”.
Legal Advice and Representations from LEXVISA on Section 3C Leave
Despite the sympathies extended to the Appellants, the operation of relevant Immigration Rules and laws has not changed.
Therefore, it is of the utmost importance that you ensure that you obtain proper guidance and assistance from specialist immigration solicitors on whether you have valid section 3C leave. If you fail to do so, you may risk being classified as an overstayer and be liable to be detained and removed from the UK. This as a consequence may result in a ban against further entry into the UK of up to 10 years being imposed against you.
Successful UK Immigration Applications and Advice on Section 3C Leave
Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through the process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for a telephone case assessment even if you wish to consider other advisers. If you wish to consider your options, please call our Immigration Team so we can assess your matter and if necessary advise you of the next steps you should take in a consultation.
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We can ensure that you remain compliant with your visa conditions and will be able to demonstrate your eligibility for an extension visa or indefinite leave to remain. Get in touch with our business immigration lawyers now on 02071830570. You can also reach us via our contact form.