What is Meant by Section 3C Leave?
To the uninitiated, immigration law can be deeply complex, due to its many rules, paragraphs, sub-sections, and constant updates. It is little wonder then that few would understand the meaning of section 3C and section 3D leave. In this article, we will explain both forms of leave and the implications for those subject to immigration control.
What is Section 3C leave?
Many people will be unfamiliar with section 3C leave, as it is applied automatically by the Home Office in specific circumstances. In essence, section 3C leave is the leave granted by the Home Office when a person makes an application to extend or vary their leave and allows migrants to remain in the UK between the expiry of their current visa and the decision being made on their new application. Section 3C leave will only be applied, however, if the individual makes a valid application to extend or vary their leave before their current visa expires.
The immigration rules section 3C (2) outline the circumstances which lead to leave being extended:
“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(a) the application for variation is neither decided nor withdrawn,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,] is pending (within the meaning of section 104 of that Act) (ca)an appeal could be brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”), 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),
(cb) an appeal under the 2020 Regulations against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of those Regulations), or]
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending.]”
Put more simply, this section clarifies that leave can be extended under 3C when:
- An application is pending a decision
- An appeal under Nationality, Asylum and Immigration Act 2002 or Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 can be brought or is pending a decision
- An administrative review could be sought or is pending
It is important to understand that section 3C leave is not applicable in all circumstances, including where an application is:
- made for a residence card under the EEA Regulations
- invalid – this may even apply if the main applicant’s application satisfies the Home Office validation requirements, but a dependent on the same application does not. Also, if any mandatory sections are not properly completed, while you will be given ten days to rectify your application, if this is not done satisfactorily, your application may also be ruled invalid. More on the rules of validity for visa applications can be found on the Home Office website. It is important to note that where an application is deemed to be invalid, and their existing leave has expired, the applicant’s leave will technically have run out on the day of expiry.
- withdrawn by the applicant
- successful but the decision is later withdrawn – on occasions, where a positive decision is made by the Home Office, the Secretary of State may later withdraw the decision. This may occur, for example, if they discover that false information has been provided. As stated above, if an appeal or administrative review is sought, section 3C leave will likely still be granted.
Can Section 3C leave be cancelled?
Yes, the Home Office does have the discretion to cancel section 3C leave if they believe that they have grounds to do so. The guidance followed by case officers is clear that cancellation of section 3C leave should only be undertaken in very limited circumstances; it states , “you must not cancel section 3C leave simply because you have refused the application for further leave even where there has been a breach of conditions or deception has been used”. They will also have regard for the impact on any children if section 3C leave is cancelled.
Section 3C leave may be cancelled if, for example, a Tier 2 work visa migrant breaches the conditions of their leave and it is considered that there is no benefit in allowing them to remain in the UK for the purposes of work if the relationship with the original sponsor license holder has ended, or if the individual poses a significant risk to members of the public.
What is Section 3D leave?
Section 3D under section 11 of the Immigration, Asylum and Nationality Act 2006, is a much smaller part of the immigration rules and only covers a specific set of circumstances. This section provides that when leave to enter or remain is curtailed (i.e. shortened in duration) or cancelled, the individual’s leave will be extended automatically if an appeal can be brought against the Home Office, or if an appeal decision is pending. However, because the right of appeal was removed in the Immigration Act 2014 for curtailment or revocation of leave on or after 6th April 2015, section 3D only applies to pending appeals for decisions made before that date.
If you have any concerns regarding section 3C or 3D leave, it is always advisable to speak to immigration lawyers who will be able to assist you. If, for example, you have been accused of deception due to minor differences between your HMRC tax records and the income stated on a visa extension application, you may have your section 3C leave cancelled, and hence be treated as an overstayer if your current leave has expired. Experienced immigration solicitors will be able to rapidly assess your case and recommend the best course of action to secure your immigration status, and then handle the matter for you.
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