Applying for leave to remain is becoming an ever scarier process. The Home Office continues to invent new ways of rejecting, voiding and invalidating applications, such that the process of getting a substantive decision has become a minefield. And with the government’s ‘increasingly hostile environment’ now in full play, innocent mistakes by advisors can pitch their client headlong into disaster.

In this vital new course, we will look at issues concerning the validity and timing of applications and further applications, including recent changes to section 3C leave, the new paragraph 39E, variation of applications, and how all this weaves together with administrative reviews and appeals. We will show you how to get through the minefield intact, ensuring your applications are never again rejected, voided or invalidated, and provide you with a full set of tools to protect your client’s leave when applying to extend.

Automatic extension of leave (also known as ‘continuing leave’ or ‘3C leave’)

The Home Office takes several weeks or months (or even years in some cases) to decide an application for an extension of stay. For a person who has made an in-time application (ie before their leave ran out), this delay will usually result in the person’s leave expiring while the application is awaiting an initial decision.

Section 3C of the Immigration Act 1971 was enacted to deal with this problem. It creates the concept of ‘continuing leave’, that is leave which continues to run even when the person’s leave that was granted to them has run out. The person’s leave just continues, through the operation of the law, even though it will appear (from any glance at the leave document or BRP) to have expired

Section 3C serves to extend a person’s leave throughout the three separate stages of the application process:

• – firstly, where the person’s leave runs out whilst the HO are deciding the application, section 3C automatically extends that leave until the application is either decided or withdrawn
• – secondly, if the application is refused, section 3C further extends that leave by the period allowed to lodge an in-country appeal or an application for Administrative Review.
• – An application for Administrative Review must be lodged within 14 days of the person receiving the HO’s decision to refuse the application (r34(1)(a)).
• – An appeal must be lodged within 14 days of the HO decision being sent to the applicant (Rule 19, The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014)
• – lastly, where the appeal or Administrative Review has been lodged in-time, 3C continuing leave continues whilst the appeal or Administrative Review remains pending.

Section 3C also extends the conditions attached to the previous grant of leave, so that a person who could previously work or study or claim benefits can continue to do so.

Where an out of time appeal or Administrative Review is lodged, 3C leave will not be resurrected if an extension of time is granted by the Tribunal or Home Office. This reflects a recent change in Home Office policy on 3C leave (as now provided in the current Home Office guidance: 3C and 3D leave in the Modernised Guidance).

It is important to understand how 3C works, and how it doesn’t:

• – Section 3C does not kick in at any stage if the person’s leave as granted to them expires after they have received a decision from the HO to refuse their application: that is, if they still have leave at the date the decision is made

In that case, they will not benefit from 3C leave at any stage. They will become an overstayer as soon as the leave that was granted to them runs out, and will remain an overstayer unless and until they are granted further leave or depart from the UK. The fact that they have lodged an in-time appeal or Administrative review against the decision will not change the fact that they will become an overstayer when their leave runs out.

They will not benefit from section 3C because their leave ran out after rather than before they received the refusal decision. Their crime was to make the application too early. They could well be caught out even if making an application at a Premium Service Centre (PSC) on the last day of their leave, because if they are refused on the spot, they will still have leave until midnight of that day, and arguably will not then benefit from 3C leave whilst they challenge the decision. Consequently, the risk of refusal before the person’s leave runs out will be a good reason not to apply in person at the PSC.

The Home Office suggests that if a person caught by this anomaly wants the protection of section 3C, they can make (yet) another application shortly before their leave expires, so that they will have 3C leave to cover them for the appeal or AR application that will already be pending.

To avoid this problem, a person who wants to extend or vary their stay should wait until their leave has almost expired before applying to extend or vary that leave, and should do so by post, to ensure that their leave has run out by the date of decision. If the application is then refused, they will benefit from continuing leave whilst they challenge the decision.

• – As there is no longer a right of appeal against curtailment, a person whose leave is cancelled or curtailed by the HO does not benefit from continuing leave. They will become an overstayer immediately on their leave being cancelled or curtailed. Consequently, section 3D of the Immigration Act 1971, which worked in a similar way to section 3C leave for those whose leave was curtailed, was deleted by the Immigration Act 2016.
• – Section 3C does not apply to applications for judicial review (unless the court is persuaded to suspend the effect of the decision pending the judicial review being resolved). So, a client thinking about judicial review needs to understand that if it fails, any further application under the Rules may be ruled out because of lengthy overstaying; and that they if further leave is ultimately granted, they may have lost their continuous leave (a requirement for indefinite leave applications), resetting the settlement clock to zero.

An adviser may have to help their client persuade an employer, landlord, bank or the DVLA that they are lawfully in the UK with continuing leave under section 3C leave and, consequently, that their job, home, bank account, and car should not be taken away from them. It will be easy for those with section 3C leave to fall foul of the hostile environment for illegal migrants whilst they remain wholly lawfully resident in the UK. Employers and landlords are now very nervous at the sanctions and penalties that can be levied against them if they get it wrong. Whilst they have access to HO guidance, which explains 3C leave to them and the circumstances in which they can rely on 3C leave to avoid sanctions, they may not understand it or may simply not bother with it  when dismissal or eviction appears the easier and safer option.

Top Tip

Remind the reluctant employer that the Home Office’s ‘An employer’s guide to right to work checks’ states, at page 21, that:
“If, on the date on which permission (as set out in the document checked) expires, you are reasonably satisfied that your employee has either:

• submitted an in-time application to us to extend or vary their permission to be in the UK; or
• made an appeal or an administrative review against a decision on that application;

your statutory excuse will continue from the expiry date of your employee’s permission for a further period of up to 28 days to enable you to obtain a positive verification from the Employer Checking Service”.

Unfortunately, problems can arise even where the employer or landlord does ring the HO ‘hotline’ – the checking services for employers and landlords. The information available to HO staff on the hotline is often out of date or inaccurate. It may be the application, though made in time, has not yet been logged on the HO computer system, or has been logged, but in a name other than your client (ie where they are a dependant on someone else’s application). Evidence that the application did reach the HO will be useful in these circumstances. The adviser must remain calm so as not to antagonise those they are negotiating with. Hopefully, the employer can be persuaded to contact the HO again to clarify things with any new information you are able to provide them.

One way of opening a channel of communication to the HO in these cases is for the person to contact their local MP’s office.

Where all else fails in such cases, the employer should be reminded that an action could be brought for wrongful dismissal or discrimination if your client is sacked for reason of their immigration status when they have provided the employer with sufficient evidence to show that they are in the UK lawfully and entitled to work.