Table Of Contents
- What is Section 3C leave
- Who are the beneficiaries of Section 3C leave
- When does Section 3C leave apply
- How long does Section 3C leave last
- Conditions of your immigration leave where Section 3C leave applies
- When is Section 3C Leave cancelled
- What happens to dependants
- What happens if the Home Office refuses an application
- Summary
Section 3C leave of the Immigration Act 1971 is intended to prevent you, who make an in-time application to extend your leave or permission, from becoming an overstayer while you are awaiting a decision on your application and while any appeal or administrative review you are entitled to is pending.
If your leave to enter or remain in the UK is soon due to expire, you must apply to extend your permission to stay so that ‘section 3C leave’ rules work in your favour.
Section 3C leave does not extend your leave in the UK if you apply to extend or vary leave after your current leave or permission has expired.
What is Section 3C leave?
If you apply to extend your leave in the UK, you may not always get a decision from the Home Office before your current leave expires. In such a situation, Section 3C of the Immigration Act 1971 extends your leave so you remain lawfully present in the UK while you wait for a decision. This extended leave to stay in the UK until you get a decision is known as ‘section 3C leave’.
Section 3C prevents you from becoming an overstayer. The Section 3C leave provisions are designed to prevent you from staying in the UK unlawfully while awaiting or appealing a Home Office decision.
Who are the beneficiaries of Section 3C leave?
Any individual who successfully submits a valid, on-time application (before their current permission expires) to switch or extend their leave is automatically covered under Section 3C leave until the Home Office decides on their application, including any appeal or administrative review period.
Importantly, if your previous visa permitted you to work (such as a Skilled Worker visa) or study (such as a UK Student visa) in the UK, those rights continue while your Section 3C leave is active. However, unless your visa is granted, you cannot take on new work or change your visa conditions.
Simply submitting an application before your visa expires is not enough if it fails the validity requirements because an invalid application does not extend your leave under Section 3C. An application may be invalid for reasons such as you use the wrong application form, you do not pay the required application fee (unless you have a valid fee waiver), or you do not pay the IHS (Immigration Health Surcharge) when required.
Section 3C does not extend leave where you apply for a residence card under the EEA (European Economic Area) Regulations Immigration Regulations 2006. A residence card application is not an application for the purpose of extending or varying leave; it seeks confirmation that rights under the EEA Regulations are being exercised; therefore, you do not need to have leave to enter or remain.
When does Section 3C leave apply?
Section 3C leave applies when you have a pending decision on an application, a pending decision on an appeal, or a pending decision on an administrative review.
Section 3C leave applies where you apply to extend or vary leave before your current leave expires. An in-time application is one that you make from inside the UK and, at the time of your application, you have leave to enter or remain here. Section 3C extends your existing leave until your application is decided (or withdrawn) and while any appeal or administrative review you are entitled to is pending.
1. Pending decision on your application
Section 3C leave will apply to you if:
• You have LLR (Limited Leave to Remain) or LLE (Limited Leave to Enter) in the UK
• You apply to the Secretary of State (UK) for the variation of that leave (A variation of leave can involve seeking to vary the length of time for which you are permitted to remain in the UK, the conditions attached to your leave, and the purpose for which you are permitted to remain in the UK). While Section 3C leave extends your leave, you cannot make a new application for variation of leave.
• You apply for variation of that leave before your current leave expires
• Your current leave expires before the application for variation has been decided
• Your application for variation of leave is neither decided nor withdrawn
2. You have a pending appeal
Section 3C leave continues for you during any period when:
a. You could bring in an in-country appeal (ignoring any possibility of appeal out of time with permission).
An in-country appeal is one that you are allowed to make while you are still in the UK, without having to leave the country first.
For example, you apply to extend your work visa before it expires, which is refused by the Home Office. However, you are given the right to appeal from within the UK (this will be mentioned in your refusal letter).
b. The appeal is pending, meaning you have lodged it, but it has not been either finally determined, withdrawn, or abandoned.
Out of time appeals
Section 3C leave ends when you do not appeal or seek permission to appeal within the relevant time limit (for example, within 14 days). Making an appeal out of time does not extend your leave in the UK. However, if the Tribunal grants permission for an appeal that you made out of time to proceed, the case of R (Akinola) v Upper Tribunal ([2021] EWCA Civ 1308) confirms that section 3C leave will resurrect, or in other words, your Section 3C leave starts again from the date that the appeal was instituted (instituted means officially lodged (submitted).
This means that Section 3C leave resurrects when the notice of your appeal was lodged, not the date when you were granted the extension of time. Section 3C leave will not be resurrected where the Tribunal does not grant an extension of time. Where the Tribunal extends time to appeal, and your appeal is finally successful, you will normally not be at any disadvantage by the break in your leave in any of your future applications for immigration leave. For the purposes of deciding the application, any gap in leave is treated as if you were lawfully in the UK where the appeal is allowed.
3. If you have a pending Administrative Review
Section 3C leave also continues to apply during any period when:
• An AR (Administrative Review) could be sought, meaning you still have time to apply for an AR, even if you have not applied yet.
• The review is pending, meaning it has been lodged but it has not been either withdrawn, determined, or a fresh application is made bringing the section 3C leave to an end
• You have made no new application for leave to remain
If you are entitled to seek administrative review of a decision but you do not request administrative review within the relevant time limit, section 3C leave ends at the end of the last day on which you could have made an in-time application for administrative review.
You get 14 days to seek administrative review if you are not in detention and 7 days if you are in detention. If you do not already have Section 3C leave, the fact that you are entitled to seek AR of a refusal decision does not provide you with Section 3C leave, even if that AR is sought in time.
Out-of-time application for administrative review
Making an AR application out of time (this means you missed the deadline to apply for an AR) does not extend 3C leave. However, if the out-of-time administrative review is accepted by the Home Office, 3C leave will run from their decision to accept it.
How long does Section 3C leave last?
Per the Immigration Act 1971 – Section 3C (2), once triggered, 3C leave will last for as long as:
• You are yet to get a decision on your application for leave to enter or leave to remain, and your application has not been withdrawn, or
• No decision has been made on your application, but you are still within the time limit to lodge an appeal or
• Requesting an AR.
Section 3C leave will also extend to the time until your appeal or administrative review is finally decided, or until such appeal or administrative review is either withdrawn or abandoned. Simply put, Section 3C leave will only come to an end when your application has been decided, and you have fully exhausted your rights to appeal or administrative review.
However, Section 3C leave shall lapse or end automatically once you leave the UK.
Conditions of your immigration leave where Section 3C leave applies
Where you are on Section 3C leave, you continue to remain subject to the conditions associated with your extant leave unless the Secretary of State (UK) decides to vary the conditions of your leave. For example, if you are subject to a condition that allows you to take up employment in the UK, you may continue to work here as before. Any restrictions that were there on the type of employment permitted or how many hours you can work will still apply.
When you are in the UK on section 3C leave, you can have conditions associated with your leave varied, in the same way that a person who has been granted leave can get their conditions of leave varied.
So, for example, any conditions attached to your leave to enter or remain may be varied, imposing a residence requirement or putting you on reporting conditions.
When is Section 3C Leave cancelled?
Your Section 3C leave may be cancelled where you have either failed to comply with one or more conditions associated with your leave, or you used, or use, irrespective of whether successfully or not, deception in seeking leave to remain.
Section 3C leave cannot be cancelled for any other reason.
What happens to dependants?
Where your (the main applicant) Section 3C leave is cancelled, the Home Office can make a removal decision in respect of your dependants that will invalidate any extant leave under the Immigration and Asylum Act 1999.
What happens if the Home Office refuses an application?
If your visa application is refused by the Home Office, Section 3C leave continues only if you lodge an in-time appeal or administrative review. Your leave to enter or leave to remain ends if no appeal is made, and you must leave the UK or risk becoming an overstayer. Also, your Section 3C leave ends immediately if you leave the UK and travel outside the country while your application is still pending. Your application is considered withdrawn in such cases.
Summary
Section 3C leave allows you to stay in the UK even after your visa expires if you made an in-time application to extend or vary leave and you are still awaiting a decision on your application, and while any appeal or administrative review you are entitled to is pending. However, it is not as simple as it may sound. Therefore, you should never make an application for leave to remain after the relevant time limit. However, making an in-time application alone does not guarantee you Section 3C leave if your application is invalid.
You further need to understand your options for appeal or administrative review if your visa application is refused. Therefore, you should seek expert Immigration Legal Support.